Nandana Suminda Gunawardana v Commonwealth of Australia, as represented by Services Australia
[2021] FWCFB 6018
•28 SEPTEMBER 2021
| [2021] FWCFB 6018 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Nandana Suminda Gunawardana
v
Commonwealth of Australia, as represented by Services Australia
(C2021/2729)
VICE PRESIDENT CATANZARITI | SYDNEY, 28 SEPTEMBER 2021 |
Appeal against decision [[2021] FWC 2243] of Commissioner McKinnon at Melbourne on 23 April 2021 in matter number U2020/9859 - permission to appeal refused.
Introduction
[1] Mr Nandana Gunawardana (the Appellant) has applied for permission to appeal, and has appealed, against a decision 1 made by Commissioner McKinnon on 23 April 2021 (the Decision) which concerned an application made by the Appellant for an unfair dismissal remedy in respect of the termination of his employment with Services Australia (the Respondent). The Commissioner determined that the Appellant’s dismissal was not harsh, unjust or unreasonable within the meaning of s 387 of the Fair Work Act 2009 (the Act) and accordingly, dismissed the application. In the notice of appeal, the Appellant contends the Decision was in error in a number of respects and asserts that it would be in the public interest for the Commission to grant permission to appeal
[2] Whilst the appeal had been listed for hearing on permission to appeal and the merits of the appeal on 11 August 2021, it appeared to us that the appeal could be adequately determined without oral submissions. We sought the views of the parties and they consented to it being determined on the papers. 2
Factual Background
[3] The Appellant commenced employment with the Respondent on 16 December 2002 and at the time of his dismissal, he was engaged as a Compliance Support Officer. The Appellant’s employment was covered by the Department of Human Services Enterprise Agreement 2017-2020 (the Agreement).
[4] In 2015, some of the Appellant’s interactions with his supervisors and various Quality Development Officers (QDOs) while working at the Respondent’s Rowville offices had been the subject of a workplace investigation. Not all the allegations against the Appellant were substantiated but those that were comprised allegations that he had failed to demonstrate respect and courtesy to his colleagues during a period covering June 2013 to November 2014. The Appellant’s actions were found to have constituted harassment and to have been in breach of departmental policies and guidelines and the APS Code of Conduct. The Appellant was sanctioned by salary reduction and formal reprimand. He accepted neither the findings nor the outcome. Subsequently, the Appellant took an extended period of leave from late 2017 until mid-August 2018, when he returned to work in the Respondent’s Box Hill office. The Appellant lodged an ‘Incident or Injury Report’ on 3 September 2018 in which he outlined feelings of stress and humiliation as a result of bullying and harassment. The allegations were denied. The Appellant ultimately elected not to pursue that matter further.
[5] A further Incident or Injury Report was lodged by the Appellant on each of 20 September 2018, 7 November 2018, 9 January 2019, 5 March 2019, 11 April 2019, 30 April 2019, 21 June 2019, and 23 July 2019, arising from various workplace interactions with a range of his colleagues. On 30 May 2019, a request was made for the Appellant’s conduct to be investigated as an APS Code of Conduct breach, on the basis that the Appellant had failed to provide supporting information for his complaint of bullying and harassment against his team leader. The decision to investigate was made and the legal firm Mills Oakley was engaged from the Commonwealth Legal Services Panel for this purpose. Mr Andrew Klein, the Practice Group Leader of the Mills Oakley Workplace Relations, Employment and Safety team in Canberra, was appointed the investigator.
[6] The purpose of the investigation was to investigate allegations that the Appellant “had engaged in inappropriate behaviour, including making serious unsubstantiated bullying and harassment allegations against his Team Leader and other colleagues, continually making unsubstantiated complaints alleging that he has been victimised and discriminated against and continually challenging and questioning work processes, performance measures and feedback provided to him.” Following the commencement of the investigation, the Appellant was suspended with pay. He was provided with details of the allegations made against him in writing and documents relevant to them and asked whether he wished to respond. On 20 February 2020, a draft investigation report was sent to the Respondent and to the Appellant for comment. On 27 February 2020, the Appellant raised concerns about Mr Klein (the investigator), Mills Oakley and the investigation process. The Appellant, together with his representative, provided responses to the draft investigation report on 3 and 5 March 2020. The investigator issued his final investigation report on 21 April 2020, finding that the Appellant had breached sections 13(2), (3), (5) and (11) of the Public Service Act 1999 (PS Act) and providing a response to various other matters, including the allegations of bias and conflict of interest.
[7] On 1 May 2020 the Appellant sought a review of the investigator’s findings by the Merit Protection Commissioner. A Sanction Delegate was appointed to the Appellant’s case and he wrote to the Appellant on 10 June 2020 expressing the preliminary view that termination of employment was the appropriate sanction. A response from the Appellant was sought and his union representative provided it on 1 July 2020. In the response, two “fundamental flaws” with the investigation were asserted. The first was that the investigator did not gather evidence or investigate the conclusions of the Respondent about whether complaints made by the Appellant were unsubstantiated or correct and the second was that the final outcome was confined to the Respondent’s pre-selected evidence and did not take into account any (or almost all) of the Appellant’s evidence. It was requested that there be no sanction of dismissal and that instead the Appellant be reassigned to a different location within Services Australia. The Sanction Delegate confirmed his decision that termination of employment was the appropriate and proportionate sanction on 3 July 2020. The Appellant’s employment was terminated with immediate effect for serious misconduct for breaching the APS Code of Conduct found in s 13 of the PS Act. At this point, the Merit Protection Commissioner review ceased.
[8] The Commissioner found that termination of employment was an available sanction to the Respondent under the PS Act and was satisfied in all the facts and circumstances that it was a proportionate response. The Commissioner therefore dismissed the Appellant’s unfair dismissal application.
The Decision
[9] In the Decision, the Commissioner set out the facts of the matter and then dealt with each of the matters she was required to consider under s 387 of the Act. In relation to s 387(a) the Commissioner dealt with the three allegations put to the Appellant, 3 together with the following matters:
• The proposition that the involvement of the investigator and Mills Oakley gave rise to a reasonable apprehension of bias; 4
• Whether the Appellant was given adequate time to respond to the draft investigation report; 5
• Whether the Appellant’s response was ignored or not genuinely considered by the investigator; 6
• Whether it was unfair for the investigator to take into account the 2015 Investigation and related sanctions; 7 and
• The involvement of Mr Bernie Gaffney in both the 2015 and 2019 Investigations. 8
[10] The Commissioner found that in making serious, unsubstantiated allegations of bullying and harassment against his team leader, Ms Maree Oswald, and in failing to follow a lawful and reasonable direction to comply with the Managing Complaints Policy, the Appellant acted in a way that was inconsistent with sections 2, 3 and 5 of the APS Code of Conduct. The Commissioner found that breaches of the APS Code of Conduct and failures to follow authorised, lawful and reasonable directions are, in appropriate cases, grounds for termination of employment under the PS Act. The Commissioner concluded that dismissal was a proportionate response in the circumstances because a previously imposed, lesser sanction for substantially similar behaviour had not had the relevant deterrent effect. 9 The Commissioner considered the fact that not all of the findings made against the Appellant in the Investigation Report were sound, defensible or well-founded did not mean that the entire investigation process was invalid, or that the findings or the decisions that followed were similarly affected. The Commissioner concluded that findings were made on the basis of a comprehensive suite of evidence.10
[11] In relation to ss 387(b) and (c), the Commissioner was satisfied the Appellant was notified of the valid reasons for dismissal and given a proper opportunity to respond to those reasons. 11 The Commissioner’s findings in relation to ss 387 (d) –(g) did not weigh in favour of a finding that the Appellants dismissal was unfair.12
[12] In relation to s 387 (h), the Commissioner took into account the Managing Complaints policy 13 of the Respondent and the Appellant’s submissions that:
• he was forced to carry out illegal and unethical work practices; 14
• reasonable and constructive efforts were not taken in a timely manner to investigate his concerns; 15
• he was given incorrect, ambiguous and inconsistent advice and directions from QDOs on how to conduct reviews; 16
• Training provided to him was insufficient and inadequate, coaching applied to him was discriminatory, and his capacity to communicate was suppressed; 17
• performance targets he was required to meet were fabricated and unreasonable; 18 and
• the Respondent did not comply with its own instruments, policies and procedures. 19
[13] The Commissioner also addressed a series of other topics the Appellant raised, which included his views concerning the systems and processes he was required to use, his assertion that Ms Oswald and Mr Gaffney should have been excluded from both the investigation and further management of him, the impact from firstly his difficulty at work and then the dismissal, his employment history and his union representation. 20
[14] The Commissioner acknowledged the Appellant was having difficulties in the workplace and with the work he was doing. While she indicated she did not doubt he genuinely held the concerns that he raised, the Commissioner concluded the Appellant’s concerns about how he was treated by his managers and QDOs and the reasons for that treatment were not always reasonably held. Further, the Commissioner concluded that the steps the Appellant took to follow through on those concerns were not always the reasonable steps expected of him. 21
[15] The Commissioner considered there had been genuine efforts to assist the Appellant and found his conduct caused unnecessary stress and unreasonable additional work for himself and those around him. 22 The Commissioner concluded there was a lack of evidence to sustain a finding that the dismissal was part of some broader conspiracy to exclude the Appellant from the workplace because of his issues with the Robodebt program and disclosures to the union and others.23
[16] While the Commissioner found that the 2019 Investigation was affected by procedural flaws, she did not consider the omission “to properly engage with” the Appellant’s response altered the substance of the findings made in relation to Allegations One and Three. The Commissioner noted those findings were consistent with her own findings about the nature of the Appellant’s conduct. She did not consider the flaws were so fatal as to render the entire investigation process and outcome void. 24 Similarly, the Commissioner did not consider that the mitigating circumstances raised by the Appellant tipped the balance in favour of a finding of unfair dismissal.25 Ultimately, the Commissioner concluded:
“[223] The Robodebt program clearly had its failings. I am unable to conclude that it was the reason that things ended up as they did at Box Hill. I note Mr Gunawardana’s submission that the program he was dealing with in 2015 later evolved into the “Robodebt initiative”. Yet if his only issue was dealing with flaws in the underlying policy, constant allegations of bullying and harassment by Ms Oswald and an unwillingness to see complaints through make no sense.
[224] In the end, there are appropriate ways of dealing with concerns and there are ways that strain the employment relationship to its limits. On balance, I find that termination of employment was an available sanction to Services Australia under the PS Act and that in all the facts and circumstances, it was a proportionate response. The dismissal was not harsh, unjust or unreasonable. It was not an unfair dismissal.”
Appeal grounds and submissions
[17] Before turning to consider the grounds of appeal advanced by the Appellant, we firstly deal with the question of whether we should receive new evidence the Appellant seeks to adduce on appeal. Section 607(2) of the Act provides that the Commission may, on appeal, admit further evidence and take into account any other information or evidence. It is well settled that the exercise of discretion to admit new evidence or to consider further material is governed by the principles set down in Akins v National Australia Bank, 26 in which the New South Wales Supreme Court identified three conditions to be satisfied of before the discretion might be exercised to admit further evidence. Firstly, it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance. Secondly, it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance. Thirdly, the evidence must be credible.27
[18] The evidence that the Appellant seeks to adduce on appeal is in the form of four news articles and seventy eight parliamentary submissions made to a Senate inquiry into Centrelink's compliance program. Having reviewed this additional material the Appellant seeks to adduce we decline to admit that evidence. Our reasons are as follows.
[19] Firstly, much of this evidence (one of the news articles and the parliamentary submissions) appears to have been available to the Appellant and could have been adduced with reasonable diligence in the proceedings before the Commissioner.
[20] Secondly, while we observe that three of the news articles were published after the Commissioner handed down her decision, we are not persuaded that these (or the evidence that was available) are such that there is a probability a different outcome would have resulted at first instance. The evidence that the Appellant is seeking to adduce appears to engage with the Robodebt program. The requirement for the Appellant to work on this program was, in our view, no more than vaguely peripheral to the matters that gave rise to his dismissal.
[21] Given our above findings, there is no need to consider the credibility of the evidence. We refuse leave for the Appellant to adduce further material.
[22] We turn then to the grounds of appeal. Noting that it resembled in large part an outline of submissions, the notice of appeal outlined, in essence, three grounds of appeal:
1) The Decision involved significant errors of fact;
2) The Commissioner acted on a wrong principle in relation to the investigator and the investigation report; and
3) The Commissioner failed to take material considerations into account.
[23] As to the asserted significant errors of fact, the Appellant’s contention is that the Commissioner failed to properly consider whether the termination was valid and whether his conduct was serious misconduct. In particular, the Appellant contends the Commissioner failed to properly consider:
a) The Appellant’s right to union representation;
b) That the Appellant was asked to adopt illegal and unethical work practices;
c) Evidence regarding conflicting communication between the Appellant and Ms Elisha Hodgson;
d) That the Respondent failed to comply with its own Managing Complaints policy;
e) Contradicting claims from Ms Oswald and Mr Gaffney that the Appellant was a bully;
f) The failure of his union (the CPSU) to provide him with fair representation;
g) Evidence relating to the changes in location for the entire compliance team; and
h) That an Incident or Injury Report was the one and only way to officially record incidents at work and was not the mode through which allegations were to be lodged.
[24] Dealing next with the complaint that the Commissioner acted on a wrong principle in relation to the investigator and the investigation report, the Appellant contends the Commissioner “vigorously defended the investigator and rejected his attendance at the hearing”, accepted the investigator’s formulated allegations containing accusations, assertions and conclusions and placed too much weight on the investigator’s report.
[25] Finally, the Appellant asserts the Commissioner failed to take material considerations into account. We discern from the notice of appeal that these are said to be:
a) The Appellant’s Individual Performance Assessment (IPA);
b) The investigator’s conflict of interest and failure to uphold the terms of reference;
c) Whether the Respondent had provided the Appellant with a lawful and reasonable workplace; and
d) The identical nature of the draft and final investigation reports.
[26] The public interest grounds for the grant of permission to appeal asserted by the Appellant were also set out in the form of submissions in the notice of appeal. The public interest grounds raised in the notice of appeal and the Appellant’s outline of submissions are, in summary:
a) With the Appellant’s questioning of the efficacy and legitimacy of the Robodebt program having contributed to the deterioration of the employment relationship, the subsequent revelations regarding that program compels the Commission to grant permission to appeal as a matter of public interest;
b) The Appellant was subjected to unreasonable, unethical and illegal directions at work;
c) The right to be represented by a Union is a matter of importance and general application; and
d) There is public interest in establishing whether the filing of an Incident or Injury Report used in the Commonwealth public service can form the basis of an accusation that the author has made an unsubstantiated allegation.
[27] On the whole, the balance of what was recorded by the Appellant as being public interest grounds was in the nature of further assertions of errors of fact and the outline of submissions filed by the Appellant largely repeated the contents of the notice of appeal.
Consideration
[28] In considering the merits of the appeal, it is relevant to observe that 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. 28 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[29] 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.
[30] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], 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.29 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.” 30
[31] 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.31 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.32
[32] For reasons that follow, we are not satisfied that it is in the public interest to grant permission to appeal in this case.
[33] Firstly, the Decision dealt with the Appellant’s unfair dismissal application in a methodical and appropriate manner. The Commissioner outlined that background facts in detail and then considered each of the criteria in s 387 of the Act. In particular, the Commissioner considered the various matters the parties raised in respect of s 387(a) and s 387 (h) in clear and discreet terms before reaching her conclusions.
[34] Secondly, the Commissioner applied orthodox legal principles in determining the unfair dismissal application. We have noted the various other decisions the Appellant cited and that he seeks in particular to rely on the decision in Jennifer Watts. 33However, we agree with the observations made by the Commissioner in relation to the applicability of that decision34 and consider that case and this matter are distinguishable on their facts.
[35] Thirdly, whilst the notice of appeal and submissions assert numerous errors of fact, we are not persuaded the Appellant has established significant errors of fact required by s 400(2) of the Act. While the Appellant disagrees with many findings of the Commissioner, this does not establish those findings were erroneous. We are not persuaded by the submission that the Commissioner failed to properly consider whether the termination was valid and whether his conduct was serious misconduct. The Commissioner set out her analysis of the factual dispute in great detail. She gave reasons for her various findings, some of which favoured the Appellant and others, the Respondent. The Commissioner’s approach in deciding whether there was a valid reason for the Appellant’s dismissal related to his conduct was encapsulated in the following extract from the Decision:
“The fact that not all of the findings made against Mr Gunawardana in the Investigation Report were sound, defensible or well-founded does not mean that the entire investigation process was invalid, or that its findings or the decisions that followed were similarly affected. The findings were made on the basis of a comprehensive suite of evidence, including many contemporaneous records created by Mr Gunawardana. The evidence available to Mr Klein, at the time the draft findings were made, covered much of the same ground ultimately contained in Mr Gunawardana’s response and confirmed in the final Investigation Report.” 35
[36] As to the alleged significant errors of fact:
a) We are not persuaded the Commissioner failed to consider the Appellant’s right to Union representation. The evidence is replete with examples of the CPSU’s role having been recognised by the Respondent. For instance, the Commissioner noted the CPSU was in attendance at the meeting on 10 May 2019 for a final Support Action Plan meeting, the Appellant was able to meet with the CPSU on 31 May 2019 and the CPSU was present at a meeting held on 21 June 2019. Further, we observe there was evidence of other examples of the CPSU’s role as a representative of the Appellant having been recognised by the Respondent. For example, the CPSU was present at the Appellant’s performance review and coaching session on 5 August 2019, was copied into correspondence from the investigator to the Appellant’s solicitor on 30 September 2019 and 9 October 2019 and forwarded the Appellant’s response to the letter dated 10 June 2020 from the Sanction Delegate, in which the preliminary view on sanction for breach of the APS Code of Conduct was conveyed. The evidence does not establish a failure by the Respondent to recognise the right of the Appellant to have a representative of his choice and nor did the Appellant limit himself to representation from the CPSU. We find no error in the observation of the Commissioner that the Respondent is entitled to correspond directly with its employees in the context of managing their complaints. 36 Moreover, we agree with it. To the extent the Appellant complains the Commissioner failed to properly consider the failure of the CPSU to provide him with fair representation, we agree with the Commissioner’s conclusion that the quality of his union representation is a matter between the Appellant and the CPSU and does not go to the question of whether he was unfairly dismissed.37
b) We are also not persuaded by the Appellant’s contention that the Commissioner failed to properly consider his assertions that has was asked to adopt illegal and unethical work practices. The Commissioner squarely dealt with this in the Decision 38 and we agree with her finding that the Appellant was not subject to unreasonable management action by the mere fact of being expected to work on the Robodebt program in accordance with guidelines established by the Respondent.39 Similarly, while the Appellant charges the Commissioner with having failed to properly consider his email communication with Ms Elisha Hogan regarding his policy concerns, the Commissioner referred to the escalation of these.40 As we have outlined above, we consider the requirement for the Appellant to work on the Robodebt program was no more than vaguely peripheral to the matters that gave rise to his dismissal.
c) The Appellant asserts that the Commissioner’s conclusion that he failed to follow a lawful and reasonable direction to comply with the Managing Complaints policy constitutes a significant error of fact. He submits this is because the Commissioner failed to properly consider whether the Respondent complied with that policy. The Appellant submits the wording from the policy that states “Your compliant should be based on fact, supported by enough detail, and not be frivolous or vexatious” and “when making a complaint, you should clearly describe the decision, action or behaviour you consider was wrong, unfair, unreasonable or inappropriate” does not give rise to a requirement to provide specific details such as names and the other identifiers stipulated by the Respondent. We reject this contention and find no error.
d) We note that the Commissioner provides an account of the interaction between Ms Katrina Bilic and the Appellant during the period 18 March 2019, when Ms Bilic commenced providing dedicated support to the Appellant, and 18 April 2019, when the Appellant was advised that the complaint from Ms Bilic was considered resolved. 41 While expressed as a failure to properly consider contradicting claims from Ms Oswald and Mr Gaffney that the Appellant was a bully, the Appellant has in essence submitted that notwithstanding Ms Bilic’s complaint that he was bullying her, Ms Bilic was repeatedly re-assigned to him as QDO by Ms Oswald. We are not persuaded by the Appellant’s contentions. The abovementioned facts speak for themselves.
e) The Appellant contends the Commissioner’s finding that he had changed teams and locations more than once after the 2015 location was a significant error of fact. We do not agree. While it may have been the case that one of the changes in location did not just involve the Appellant, but his whole team, we do not consider this to be a significant error sufficient to form the basis for the grant of permission to appeal.
f) Finally, the Appellant submits the Commissioner failed to properly consider that an Incident or Injury Report was the one and only way to officially record incidents at work and these were not the mode through which allegations were to be lodged. We do not accept this submission. The Commissioner observed that the Appellant adopted the practice of registering his concerns via an Incident or Injury Report as opposed to using the Managing Complaints policy and that in most cases they comprised complaints about his treatment at work, including that he was being bullied and harassed, victimised, treated differently to others and discriminated against. The Commissioner correctly observed that in such circumstances, the Respondent was obliged to take the complaints seriously and this enlivened a reasonable requirement for the Appellant to provide details. The Commissioner dealt squarely with the Appellants contention that that he did not know that complaints made in Incident or Injury Reports would be treated as allegations requiring substantiating evidence, 42 and we find no error with the following conclusion:
“Employee complaints about matters such as bullying and harassment by another employee – in any workplace context - give rise to an obligation on the employer to take appropriate action as part of their duty to provide a safe workplace. It was both reasonable and necessary for Services Australia to take steps to investigate the matters further. Mr Gunawardana may not have intended for the contents of his reports to be formally treated as complaints, and certainly his intention was to avoid making a formal complaint under the Managing Complaints Policy, as early as September 2018, Mr Gunawardana was asked to provide more information to substantiate his complaints about Ms Oswald and expressly told about the Managing Complaints Policy. He knew, or should have known, by then that allegations of misconduct made against others – including in the context of reporting safety concerns - would likely be followed up.” 43
[37] Fourthly, we are not persuaded that the Commissioner acted on a wrong principle in relation to the investigator and the investigation report on account of either having “vigorously defended the investigator and rejected his attendance at the hearing” or having accepted the investigator’s formulated allegations containing accusations, assertions and conclusions and placing too much weight on his report. The Decision makes clear that while the Commissioner had regard to the investigation report, she did not agree with all the findings outlined in it. The Commissioner formed her own views in relation to the allegations against the Appellant and where she considered there were shortcomings in either the process adopted by the investigator or the conclusions he reached, the Commissioner outlined these.
[38] Fifthly, we are not persuaded it is reasonably arguable that the Commissioner failed to take into account considerations said by the Appellant to have been material to the determination of his unfair dismissal application. The Appellant asserts the Commissioner failed to properly consider comments of significance in the mid-cycle review in his IPA from March 2019, which he says disclosed no conduct issues and included statements that he had upheld APS Values, Employment Principles and the Code of Conduct. However, the Commissioner acknowledged these comments in the Decision 44 when also correctly observing that those comments were included “at the same time as the parties were dealing with the issues that ultimately led to contrary findings.” The evidence reveals the Commissioner’s observation was correct. Ms Oswald sent an email to the Appellant on 1 March 2020, making a third request for particulars relating to a complaint the Appellant had made on 20 February 2020.45 As to the complaint that the investigator had a conflict of interest and the Commissioner failed to take this into account, we observe that the Commissioner dealt with the charge that the investigator and his law firm were biased46 and we consider her conclusions regarding these matters were soundly based. The Appellant also contends that it was manifestly unreasonable for the Commissioner not to consider the failure by the investigator to uphold the terms of reference. We observe however that the Commissioner dealt with issues relating to the investigator’s engagement with the terms of reference and concluded that the Appellant’s response to the draft report was not fully considered by the investigator before the final report was issued.47 It is also apparent that this was taken into account by the Commissioner when she reached her conclusion that there was nonetheless a valid reason for dismissal related to the Appellant’s conduct.48 The Appellant similarly submitted that the Commissioner failed to consider the ‘identical’ nature of the draft and final investigation reports. On a fair reading of the Decision however, this submission is not sustainable. The Commissioner observed that many of the Appellant’s responses to the draft report did not offer up new information and thus did not warrant any changes49 and further, that the evidence available to the investigator, at the time the draft findings were made, covered much of the same ground ultimately contained in the Appellant’s response.50 Finally, to the extent the Appellant asserts the Commissioner failed to take into account whether the Respondent had provided the Appellant with a lawful and reasonable workplace, we have dealt with this contention above. The Appellant simply disagrees with the Commissioner’s consideration of this question and her findings.
[39] Finally, notwithstanding the Appellant’s assertion that the Robodebt programme and other aspects of the directions he received from the Respondent were central to the issues that befell the employment relationship between the parties, and his submissions regarding the right to representation and the filing of an Incident or Injury Report, we do not consider the appeal raises any matters of importance or general application. Ultimately, this matter turns upon its own facts and the Commissioner reached a decision that was open to her on the material before her.
[40] An appeal exists for the correction of error. While the Appellant is aggrieved by the Decision, he seeks to re-argue through this appeal the same matters which were appropriately considered and weighed by the Commissioner in search of a different result. As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
VICE PRESIDENT
Hearing details:
Determined on the papers
Final written submissions:
Respondent’s written submissions dated 28 June 2021.
Printed by authority of the Commonwealth Government Printer
<PR734368>
1 [2021] FWC 2243.
2 Section 607(1) of the Fair Work Act 2009.
3 Decision at [95]-[109]
4 Decision at [110]-[118]
5 Decision at [119]-[126]
6 Decision at [127]-[142]
7 Decision at [142]-[145]
8 Decision at [146]-[147]
9 Decision at [148]-[151]
10 Decision at [152]
11 Decision at [159]
12 Decision at [160]-[162]
13 Decision at [163]-[173]
14 Decision at [174]-[183]
15 Decision at [184]-[188]
16 Decision at [189]-[193]
17 Decision at [194]-[199]
18 Decision at [200]-[202]
19 Decision at [203]-[208]
20 Decision at [209]-[214]
21 Decision at [216]-[217]
22 Decision at [218] and [220]
23 Decision at [219]
24 Decision at [221]
25 Decision at [222]
26 (1994) 34 NSWLR 155
27 Cited in Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6936.
28 This is so because on appeal FWC 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
29 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]
30 [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
31 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
32 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]
33 [2018] FWC 1455
34 Decision at [99]-[100]
35 Decision at [152]
36 Decision at [214]
37 Ibid
38 Decision at [174]-[183]
39 Decision at [183]
40 Decision at [180]
41 Decision at [40]-[51]
42 Decision at [207]
43 Decision at [208]
44 Decision at [213]
45 AB 3626
46 Decision at [110]-[118]
47 Decision at [140]-[142]
48 Decision at [152]
49 Decision at [137]
50 Decision at [152]
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