Parmalat Food Products Pty Ltd v Christopher Tran
[2015] FWCFB 7475
•6 NOVEMBER 2015
| [2015] FWCFB 7475 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Christopher Tran
(C2015/6098)
VICE PRESIDENT WATSON | MELBOURNE, 6 NOVEMBER 2015 |
Appeal against decision [[2015] FWC 5535] of Deputy President Lawrence at Sydney on 27 August 2015 in matter number U2015/4581 – Permission to appeal – Whether grounds of appeal attract the public interest – Permission to appeal granted – Fair Work Act ss. 394, 400, 604.
Introduction
[1] On 27 August 2015 Deputy President Lawrence issued a decision 1 and order2 regarding an application made by Christopher Tran under s.394 of the Fair Work Act 2009 (the Act). On 16 September 2015 Parmalat Food Products Pty Ltd (Parmalat) lodged an appeal against the decision and order.
[2] Parmalat was directed to file and serve an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision. The matter was listed for hearing on 27 October 2015.
[3] As the decision arises from an unfair dismissal application, s.400 applies to the appeal. This section provides that:
“400 Appeal rights
(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.”
[4] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 3 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[5] Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, where the decision at first instance manifests an injustice, where the result is counterintuitive, or where the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.4
Permission to appeal
[6] In this case the Deputy President found that the applicant, Mr Tran, breached Parmalat safety policy and practices on 5 March 2015, but determined that this was not a valid reason for termination of his employment. 5 In making that finding the Deputy President had regard to a number of factors and concluded that:
“In all the circumstances, there were lesser punishments open to the Respondent which would have been appropriate.” 6
[7] In considering whether the Commission is satisfied that a dismissal is harsh, unjust or unreasonable, the Commission must apply s.387 of the Act. That section has been in a similar form in legislation governing unfair dismissal applications since 1996 and has been the subject of repeated considerations by the Federal Court and Full Benches over that period. In Chubb Security Australia Pty Ltd v John Thomas 7 a Full Bench said of the equivalent provision of the Workplace Relations Act:
“[35] The first matter we consider is Chubb's contention that his Honour erred in not making a finding with respect to the relevant matter specified in s.170CG(3)(a); that is, whether there was a valid reason for Mr Thomas's termination related to his conduct. Section 170CG(3) required his Honour to have regard to the matters set out in paragraphs (a) to (e) of it. We have set out in our paragraphs [6] to [10] what his Honour said with respect to each of these matters. As appears from this, his Honour did not make a finding as to whether there was a valid reason for Mr Thomas's termination related to his conduct.
[36] Section 170CG(3) says that, in determining whether a termination was harsh, unjust or unreasonable, "the Commission must have regard to" the matters specified in paragraphs (a) to (e).
[37] The words "have regard to" were considered by the High Court in Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552. MasonJ, with whom Gibbs J agreed, said (of a section of an Act which said that the Permanent Head shall have regard to certain costs) that when the section "directs the Permanent Head to 'have regard to' the costs, it directs him to take those costs into account and to give weight to them as a fundamental element in making his determination" (p.554). Murphy J said that the section "tends in itself to show that his [the Permanent Head's] duty in respect of those costs is limited to having regard to them. He must take them into account and consider them and give due weight to them, but he has an ultimate discretion" (p.556).
[38] Each of paragraphs (a) to (d) of s.170CG(3) requires the Commission to have regard to "whether" a circumstance existed. Whether it existed must then (Re Hunt; Ex parte Sean Investments Pty Ltd) be taken into account, considered and given due weight as a fundamental element in determining whether the termination is harsh, unjust or unreasonable.
[39] In this situation, and subject to the qualifications we express in the next paragraph, the Commission, in our view, is not able to have regard to the circumstances specified in ss.170CG(3)(a) to (d) without making a finding with respect to each of them.
[40] We qualify what we have said in the previous paragraph in two respects:
(1) The circumstance in s.170CG(3)(a) contains three considerations:
·the capacity of the employee, or
·the conduct of the employee, or
·the operational requirements of the employer's undertaking, establishment or service.
The need to make a finding under s.170CG(3)(a) will only be in respect of such of these three considerations as is relevant. (In the present case, for instance, the relevant consideration is whether there was a valid reason for the termination of Mr Thomas related to his conduct.)
(2) The circumstance in s.170CG(3)(d) is only relevant "if the termination related to unsatisfactory performance of the employee" (opening words of s.170CG(3)(d)).
[41] Further, it is not, we think, possible to have regard to s.170CG(3)(b) until a finding has been made with regard to s.170CG(3)(a). Section 170CG(3)(b) refers to "that reason"; that is "a valid reason", being the term used in s.170CG(3)(a). If there is no valid reason, s.170CG(3)(b) has no application. Neither, we think, has s.170CG(3)(c).
[42] We are therefore of the opinion that his Honour's failure to make a finding with respect to the relevant matter specified in s.170CG(3)(a) amounted to a failure, contrary to s.170CG(3), to take that matter into account and, accordingly, an error of the type referred to in s.170JF(2). This view is, we think, supported by Moore J's remarks, quoted in our paragraph [33], in Edwards v Giudice that a failure to comply with s.170CG(3)(a) amounts to an error of this type.” 8
[8] In Potter v WorkCover Corporation 9 a Full Bench said:
“In circumstances of summary dismissal the issue of whether the penalty imposed was proportionate to the conduct is a matter more appropriately considered in the context of s 170CG(3)(e) rather than s 170CG(3)(a). If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a “valid reason” for termination.”
[9] In Edwards v Giudice 10, Moore J of the Federal Court said:
“6. Paragraph (a) speaks of “whether there was a valid reason ... related to the ... conduct of the employee”. The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.
7. The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Second the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh unjust or unreasonable on assumed facts and not facts found.”
[10] It is arguable from these authorities that in conflating the test for valid reason with issues of proportionality the Deputy President’s decision is affected by appealable error. Further, it is arguable in expressing his conclusion as to an alternative form of disciplinary action the Deputy President failed to apply the words of the statute. As the decision under appeal raises issues of general application, including whether or not it is appropriate for the Commission to find that a valid reason does not exist for the reasons set out in the decision, we consider that it is in the public interest that we grant permission to appeal.
Conclusion
[11] We grant permission to appeal. We will issue directions for further submissions on whether or not the appeal should be allowed and if so what orders should be made by the Bench pursuant to s.607 of the Act.
VICE PRESIDENT
Appearances:
Mr I. Latham of counsel for Parmalat.
Mr T. Warnes for Mr Tran.
Hearing details:
2015.
Sydney
27 October.
Final written submissions:
Parmalat on 12 October 2015.
Mr Tran on 23 October 2015.
1 [2015] FWC 5535.
2 PR571310.
3 (2011) 192 FCR 78 at paragraph 43.
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
5 Paragraphs 54 and 57.
6 Paragraph 57
7 Print S2679.
8 See also King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [19]; Tenix Defence Systems Pty Ltd v Fearnley (unreported, AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000) Print S6238 [71]; Annetta v Ansett Australia Ltd (2000) 98 IR 233 [15].
9 (2004) 133 IR 458 at [55].
10 [1999] FCA 1836.
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