Patrick Longobardi v New Horizons Enterprises Limited T/A New Horizons
[2021] FWCFB 3559
•21 JUNE 2021
| [2021] FWCFB 3559 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Patrick Longobardi
v
New Horizons Enterprises Limited T/A New Horizons
(C2021/2663)
VICE PRESIDENT CATANZARITI | SYDNEY, 21 JUNE 2021 |
Appeal against decision [2021] FWC 2203 of Deputy President Saunders at Newcastle on 21 April in matter number U2020/16057 - permission to appeal refused.
[1] Mr Patrick Longobardi (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Saunders (the Deputy President) issued on 21 April 2021. The Decision dealt with an application for an unfair dismissal remedy made by the Appellant under s 394 of the Act.
[2] The Appellant alleged that he had been unfairly dismissed from his employment with New Horizons Enterprises Limited T/A New Horizons (the Respondent). The Respondent denies that it had unfairly dismissed the Appellant. After conducting a determinative conference, the Deputy President found that the Appellant was not unfairly dismissed 2 and dismissed his application.3
[3] The matter on appeal was listed for permission to appeal only. Directions were set for the filing of material by the Appellant regarding the grant of permission to appeal. The Respondent was not required to file material. Accordingly, the Respondent did not file any written submissions in relation to permission to appeal.
[4] The Appellant filed written submissions on 2 June 2021. On 3 June 2021, the Chambers of Vice President Catanzariti wrote to the Appellant inquiring whether he consents to having the appeal be determined on the basis of written submissions without the need for a formal hearing. That same day, the Appellant wrote back to confirm he consented to having the matter determined on the papers. Accordingly, pursuant to s 607(1) of the Act, the appeal was conducted on the basis of written submissions only.
[5] For the reasons that follow, we refuse permission to appeal.
The Decision under appeal
[6] The Appellant was employed by the Respondent as a support worker from November 2017 until his summary dismissal on 10 December 2020; his dismissal was effected by way of a termination letter of the same date. The termination letter set out the “specific misconduct” relied upon by the Respondent to support its defence to the Appellant’s unfair dismissal claim.
[7] The conduct outlined in the termination letter is set out below:
“… The specific misconduct is as follows:
1. Wyong Mental Health Unit
1.1 Unreasonable behaviour in the workplace where you made numerous phone calls to the Wyong Mental Health Unit where you were found to be aggressive, unreasonable and used offensive language.
1.2 Observed by an RN at the hospital telling a NH customer to ‘shut up’ when she was discussing her delusional content.
1.3 While being stood down pending an investigation you failed to keep confidential any matter discussed during the investigation process.
2. Inclusion Team, Central Cost
You verbally abused and harassed Inclusion team members when they rang the property regarding service to customer PB, stating that they were “ripping the customer off”.
3. You sent private and confidential information relating to a customer of New Horizons to an external email address at [email address removed].
4. You breached the New Horizons Policies and Procedures and Code of Ethical Conduct.”
[8] The Deputy President noted that much of the evidence relied on by the Respondent to support the above allegations was hearsay. 4 The Deputy President admitted the hearsay material into evidence and noted that he would consider what weight should be attributed to it.5 The Deputy President set out the relevant authorities regarding how much, if any, weight should be attributed to hearsay material.6
[9] After considering all the evidence in relation to each allegation relied upon by the Respondent, 7 the Deputy President found that allegations 1.1, 2 and 4 were substantiated while allegations 1.2, 1.3 and 3 were rejected.8 The Deputy President was satisfied that due to the Appellant’s conduct in relation to the substantiated allegations, there was a valid reason for his dismissal.9
[10] The Deputy President then considered ss 387(b) and (c) of the Act. He found that the Appellant was notified of the reasons for the termination of his employment in the termination letter dated 10 December 2020. The Appellant was also made aware of the reasons for his dismissal via a letter of allegations dated 9 December 2020 and an earlier letter of findings dated 3 December 2020. The Deputy President then found that the Appellant was given an opportunity to respond to these reasons before any decision was made to terminate his employment. Specifically, he was given the opportunity to respond in detail to the allegations made against him during a 12 December 2020 meeting. He was also given an opportunity to respond to the letter of findings dated 3 December 2020 prior to and during his meeting with Mr Buckley (Customer Service Ops Manager) and Ms Settle (People and Business Enabler – Housing & Independent Living for New Horizons) on 10 December 2020.
[11] The Deputy President then considered ss 387(d) – (h) of the Act. After considering and taking into account each of the matters specified under s 387 of the Act, the Deputy President found that the Appellant’s dismissal was not harsh, unjust or unreasonable. 10 Accordingly, the Appellant’s application was dismissed.11
Permission to Appeal Principles
[12] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[13] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making a Full Bench of the Commission 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 12
[14] 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. 13 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[15] 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. 14 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
[16] The Appellant’s grounds of appeal and written submissions take issue with the Deputy President’s treatment of the evidence in the matter below. The Appellant contends that much of the evidence relied upon by the Respondent is false or inconsistent. The Appellant also contends that he was not given an opportunity to respond to allegations of misconduct made against him by the Respondent. Furthermore, the Appellant contends that there was a lack of consideration for his mental health and that management for the Respondent breached his privacy and confidentiality.
[17] We are not satisfied that the Appellant has identified any arguable case of error. The Appellant is contending that there were numerous falsehoods or inconsistencies in the Respondent’s evidence tendered in the matter below. The Deputy President was clearly alive to the issue of the hearsay nature of the evidence relied upon by the Respondent. As the Member at first instance, the Deputy President is best placed to decide what weight is afforded to the evidence. Furthermore, the conclusion the Deputy President reached was open to him in all the circumstances.
[18] Regarding the Appellant’s contention that the Deputy President erred in finding he was given an opportunity to respond to the reasons for his dismissal, we are not satisfied that in reaching this conclusion the Deputy President acted upon a wrong principle, was guided by irrelevant factors, mistook the facts, or failed to take some material consideration into account. The Deputy President correctly applied the relevant provision of the Act in an orthodox manner and made a discretionary decision that was reasonably open to him to make.
[19] The Appellant’s contentions that there was a lack of consideration for his mental health and a breach of his privacy and confidentiality by the Respondent are, respectfully, not proper points of appeal. In the matter below, the Appellant did not raise these matters. Accordingly, the Deputy President made no findings in relation to them and therefore, no error can be identified.
Public Interest
[20] The Appellant submits that the public interest is enlivened because the Decision gives the Respondent “a green light” to operate as they want and not follow legislative processes or grievance policies. The Appellant also contends that the Respondent acted with continual aggression towards himself, told lies and misappropriated the facts. Furthermore, the Appellant contends that a company of the Respondent’s size should not be allowed to act in the manner outlined above.
[21] We are not satisfied that the Appellant has identified any sustainable public interest grounds. Furthermore, we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[22] For the reasons set out above, we are not satisfied, for the purpose of s 400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[23] Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
By consent, on the papers.
Final written submissions:
Appellant’s written submissions dated 2 June 2021.
Printed by authority of the Commonwealth Government Printer
<PR730892>
1 Patrick Longobardi v New Horizons Enterprises Limited [2021] FWC 2203.
2 The Decision at [92]
3 Ibid at [93].
4 Ibid at [15].
5 Ibid at [15].
6 Ibid at [16] – [18].
7 Ibid at [19] – [69].
8 Ibid at [70].
9 Ibid at [71].
10 Ibid at [92].
11 Ibid at [93].
12 (2010) 197 IR 266 at [27].
13 Wan v AIRC (2001) 116 FCR 481 at [30].
14 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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