Paul Goodwin v Wyndham City Council
[2023] FWCFB 216
•21 NOVEMBER 2023
| [2023] FWCFB 216 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Paul Goodwin
v
Wyndham City Council
(C2023/3779)
| VICE PRESIDENT ASBURY | BRISBANE, 21 NOVEMBER 2023 |
Appeal against decision [2023] FWC 893 of Commissioner Bissett at Melbourne on 14 June 2023 in matter number U2023/229.
This is an appeal by Mr Paul Goodwin pursuant to section 604 of the Fair Work Act 2009 (Cth) (FW Act) against a Decision[1] of Commissioner Bissett issued on 14 June 2023 to dismiss his unfair dismissal application on 14 June 2023.
On 3 July 2023, directions were made for the filing of material by Mr Goodwin and Wyndham City Council (Council).
On 3 August 2023, Mr Goodwin’s representative, Ms Sara Mitchell, wrote to the Fair Work Commission (Commission) in relation to an application to admit further evidence obtained by Mr Goodwin on 1 August 2023 pursuant to the Freedom of Information Act 1982 (Vic) (FOI Application). Subsequently, the Commission issued directions for the parties to file and serve material in relation to the FOI Application.
Mr Goodwin filed written submissions in relation to permission to appeal and the merits of the appeal on 24 July 2023, and written submissions and a witness statement in relation to the further evidence on 10 August 2023. The Council filed written submissions in relation to permission to appeal, the merits of the appeal and the further evidence on 17 August 2023.
On 23 August 2023, we conducted a hearing, by video conference, in relation to both permission to appeal and the merits of the appeal. At that hearing each party was afforded an opportunity to present oral submissions to supplement their written submissions in relation to the appeal.
For the reasons that follow, we have decided to refuse permission to appeal and dismiss the appeal.
Decision under appeal
Mr Goodwin worked as a horticulturalist with the Council from 12 June 2007 until his dismissal for serious misconduct on 21 December 2022.
On 19 August 2022 and 1 September 2022, Mr Goodwin’s manager, Mr Luke Colliver, sent emails to Mr Matthew Parkinson from the Council’s Human Resources Department setting out a range of issues in relation to Mr Goodwin’s conduct and performance. In the 1 September 2022 email, Mr Colliver asked Mr Parkinson whether it was possible to check the GPS in Mr Goodwin’s car.
On 5 September 2022, the Council received an anonymous complaint (anonymous complaint) alleging that a Council employee, along with a work issued vehicle, had been parked at the local shopping centre for substantial periods of time. Photographs of the vehicle taken on 24 and 30 August 2022 were included with the anonymous complaint. The anonymous complaint allowed the Council to access the vehicle’s GPS data under the terms of the Wyndham City Council Motor Vehicle – Information (GPS) Policy (GPS Policy).
When the Council received the anonymous complaint, it conducted an internal investigation to determine its validity. The vehicle was identified as being allocated to Mr Goodwin. On review of the GPS data for the vehicle over a five-day period covering the complaint period, the Council identified that Mr Goodwin was spending, on average, 2.02 hours per day on worksites when it was expected that he would attend worksites for 6 hours per day. The remaining time would be spent as travel time, time at the depot and meal breaks.
The Council cross-referenced the GPS data for Mr Goodwin’s vehicle with daily safety sheets, which are required to be completed at each site where work is undertaken. This cross referencing enabled the Council to identify those sites where work was done by Mr Goodwin and sites where the vehicle was stationary, but no such safety sheet was completed. This confirmed to Council that Mr Goodwin did not attend worksites for significant amounts of time. This information, in conjunction with the GPS data, also indicated to the Council that Mr Goodwin was regularly driving the vehicle although not attending worksites and spent the majority of his working time away from worksites.
The Council then decided to investigate a longer period of Mr Goodwin’s activity in case the shorter period was an aberration. Accordingly, it conducted an analysis of GPS data in relation to Mr Goodwin for August and September 2022. A review of that data confirmed a similar pattern of non-work-related activity. Across this longer period two other workers were identified as operators of the vehicle, in conjunction with Mr Goodwin, for limited periods of time. As a result, disciplinary action was taken against one of these employees while the other employee identified resigned before any disciplinary matters were finalised.
The Council provided Mr Goodwin with a letter of allegations on 25 November 2022
in relation to his attendance at worksites during the period from 2 August 2022 to 30 September 2022, which attached a GPS report prepared by Council. Mr Goodwin was suspended with pay on that day.
Mr Goodwin requested the original data downloads in relation to the GPS on 28 November 2022, which was provided by Council on 29 November 2022. On 1 December 2022, Mr Goodwin attended a meeting with Council in relation to the allegations. On 2 December 2022, Mr Goodwin responded to the allegations in writing and relied on the following matters:
· Mr Goodwin has been employed by the Council for 15 years, has always been a hardworking and diligent employee and no investigation of this sort has occurred in the past.
· August and September in particular have recorded higher than average rainfall.
· Mr Goodwin’s 23-year-old son suffered a horrific injury in that his dominant right hand was severed in a workplace accident. He has endured extensive rehabilitation and experienced excruciating pain. Mr Goodwin has been responsible for taking him to the many appointments he has to attend, because he is no longer able to drive.
· As a result of these stressors, Mr Goodwin experienced at times crippling anxiety and has developed digestive issues which can lead to using a toilet for lengthy periods of time. This is in addition to some urinary issues Mr Goodwin had already been experiencing.
The Council acknowledged the medical condition identified by Mr Goodwin may explain some of the stops, but believed that it did not explain the long periods Mr Goodwin was driving around without taking breaks, Mr Goodwin not filling out daily work sheets properly, or Mr Goodwin attending non-work-related sites. Although Mr Goodwin gave evidence that he advised Council of the existence of the medical condition in 2014, Mr Goodwin had not previously provided any medical information to the Council in relation to the condition.
On 8 December 2022, the Council issued with Mr Goodwin with a letter advising that the Council was considering terminating Mr Goodwin’s employment on the basis of its findings that Mr Goodwin:
· Engaged in unauthorised personal activity during Council time by way of failing to attend allocated worksites and thus failing to perform to the expected extent and/or standard of his duties.
· Engaged in premeditated action to disguise or conceal his non-performance of assigned duties.
· Misused Council resources (Council vehicle and fuel) for private use causing financial loss to the Council.
· Brought Council into disrepute by repeatedly acting in a manner that implies Council does not direct its resources and expenditure in the best interests of the community.
Mr Goodwin provided a written response on 12 December 2022 which included further responses to the allegations and a request that he be given an opportunity to provide medical records and a one to two week period to compare the GPS data with his diary and weather records for the entirety of the timeframe in which the allegations were made.
The Council acknowledged that Mr Goodwin indicated that his lack of productivity related to his son’s serious injury in February 2022. As a result of this the Council accessed GPS data for December 2021 and January 2022. An analysis of this data indicated a similar pattern of limited attendance at worksites with little productive work undertaken by Mr Goodwin.
On 20 December 2022, Mr Goodwin provided the Council with a letter from his doctor.
The Council advised Mr Goodwin that his employment was terminated at a meeting on 21 December 2022, and provided a letter of termination that day.
Mr Goodwin’s case at first instance was that:
· The investigation was without a proper basis as it had been triggered by a fabricated complaint;
· The GPS data was manipulated by Council; and
· To the extent that the GPS data was accurate, Mr Goodwin’s lack of attendance at worksites was explained by regular toilet stops and/or stopping work due to wet weather.
Mr Goodwin suggested that the complaint was fabricated, given the coincidence in timing, the similarity in language between the complaint and an email sent by his direct supervisor, Mr Luke Colliver, two business days earlier and the nature of the photo taken of his vehicle and uploaded with the complaint.
Mr Goodwin had concerns about the accuracy of the allegations in the anonymous complaint and from a mowing crew employee but ultimately the Council relied upon the GPS data and not the anonymous complaint in its investigation and dismissal of Mr Goodwin.
Mr Goodwin claims that the Council knew he was having regular breaks and that rather than dealing with the matter under the Council’s Performance Policy, the Council fabricated the anonymous complaint so that it could rely upon GPS data and dismiss him.
The Commissioner set out Mr Goodwin’s and the Council’s respective cases and made findings about the following matters:
a. Should the daily run sheet or daily safety sheet be used to determine worksites?
b. Reliability of the GPS data.
c. What does the GPS or stop data show?
d. Was the complaint fabricated?
e. Does Mr Goodwin’s medical condition explain his non-worksite stops?
f. The effect of the injuries to Mr Goodwin’s son.
g. Was it raining and the wet weather policy?
The Commissioner also dealt with Mr Goodwin’s request to reopen his case and admit further evidence, which she rejected.
The Commissioner then set out her reasons as to whether the dismissal was harsh, unjust and unreasonable as follows:
(a) whether there was a valid reason for dismissal related to the person’s conduct or performance
The Commissioner found that Mr Goodwin failed to perform the work expected of him, evidenced by regular and frequent absences from work, and that he could not adequately explain these absences. Further, to the extent that Mr Goodwin used his Council vehicle to travel to locations during the working day that were not related to work, the Commissioner was satisfied that he had misused his Council vehicle. The Commissioner found that these two reasons provide a sound, defensible and well-founded reason for Mr Goodwin’s dismissal.[2]
(b) whether the person was advised of this reason
The Commissioner found that Mr Goodwin was advised of the valid reason.[3]
(c) whether the person was given an opportunity to respond to any reason related to capacity or conduct
The Commissioner found that Mr Goodwin was given multiple opportunities to respond to the allegations both in writing and in person.[4]
(d) any unreasonable refusal to allow the person to have a support person present
The Commissioner found that Mr Goodwin had the support of his union during meetings with Council.[5]
(e) whether the person was warned of unsatisfactory performance
The Commissioner found that this was not a relevant consideration.[6]
(f) & (g) the size of the employer’s business and any absence of access to dedicated human resources specialist and the impact on effecting the dismissal
The Commissioner found that these were not relevant considerations as the Council is a large employer with a sophisticated and dedicated human resources team.[7]
(h) any other matters
(i) was the conduct serious misconduct?
The Commissioner found that the conduct amounted to serious misconduct given the circumstances of Mr Goodwin’s employment, the position of trust that Mr Goodwin occupied and that Mr Goodwin’s conduct was not intermittent. While it was likely that Mr Goodwin’s non-attendance had been exacerbated by both his medical condition and his son’s injury, the Commissioner determined that these matters did not provide an acceptable reason or excuse for Mr Goodwin’s limited attendance to work.[8]
(ii) differential treatment
Mr Goodwin claimed that he was treated differently to another employee who was stood down at the same time as Mr Goodwin, but was not dismissed. The Commissioner determined that the circumstances of this employee were not the same as Mr Goodwin’s on the basis of uncontested evidence presented by the Council that this employee was subject to disciplinary action, accepted the wrongdoing, demonstrated remorse and gave a commitment to improve his conduct in future. Further, the employee also demonstrated remarkably better productivity when not working directly with Mr Goodwin.[9]
(iii) Mr Goodwin’s personal circumstances
The Commissioner acknowledged Mr Goodwin’s personal circumstances and considered these carefully in reaching her decision. These circumstances included that Mr Goodwin worked for Council for 15 years, that at the age of 61 and given his medical conditions, he will have difficulty in finding alternative work, he is the primary caregiver to his injured son, and that he is the sole breadwinner for his family.[10]
The Commissioner concluded by finding that the dismissal was not harsh, unjust or unreasonable after carefully weighing all of the matters before her including the valid reason for dismissal, that the conduct amounted to serious misconduct and Mr Goodwin’s personal circumstances.[11]
Mr Goodwin’s submissions in the appeal
Further evidence
Mr Goodwin filed a witness statement on 10 August 2023 which stated that on 10 March 2023, he made an FOI Application to obtain two pieces of information, one being all job safety analysis and daily work sheets for the period of 1 August 2022 to 30 September 2022, and the other being “Information pertaining to all dates that the GPS Activity Data/Vehicle tracking reports were accessed/downloaded from app Smartrak for [Mr Goodwin’s Council vehicle], including, but not limited to, the dates and times the data was accessed, the name of the party accessing the data, the date ranges of data downloaded/accessed”.[12]
The evidence which Mr Goodwin sought to adduce includes information produced in response to the FOI Application and is as follows:
a. A 102-page report detailing the times and dates the GPS data for the Council vehicle allocated to Mr Goodwin was accessed from 1 August 2022 to 9 February 2023;
b. A 4-page report containing information that was missing from the report detailed in the 102-page report above as well as enlarged parts of the report in support of concerns as to whether the report omits even more information;
c. Correspondence in relation to the information sought by way of a FOI application;
d. Information from the website of the GPS application platform used by the Council, Smartrak, that details what one of the report functions can be used for as well as requirements surrounding privacy.
Mr Goodwin submitted that he had concerns in relation to the authenticity of the GPS Activity Reports, which was raised at first instance and addressed in the Decision by the Commissioner. For this reason, he sought to obtain the information through the FOI Application prior to the hearing at first instance to corroborate whether the dates and times were consistent with the information contained in the GPS Activity Reports ‘properties’ field. At the time of making the FOI Application, Mr Goodwin had no reason to believe that the Council had accessed GPS Activity Reports other than in accordance with the information contained in the Form F3 Employer Response.
The information sought in the FOI Application was not released before the date of the first instance hearing which was held on 4 April 2023. The Council initially denied that the information sought with respect to the GPS data existed. Mr Goodwin challenged the Council’s decision and the information was eventually released to Mr Goodwin on 1 August 2023.
Mr Goodwin submitted that the documents provided in response to the FOI Application provide evidence that the GPS records in relation to his vehicle were being accessed from at least 1 August 2022 and probably much earlier. Mr Goodwin submitted that this evidence, even with the names redacted, establishes that the investigation leading to his termination was a sham. He submitted that the further evidence will show that his GPS activity was being unlawfully monitored and contradicts the Council’s assertions that GPS records were only accessed and an investigation initiated after the Council received the anonymous complaint.
Mr Goodwin also submitted that the evidence will show that the Council had been monitoring his GPS activity for some time and became aware that he required frequent stops. The Council formed the opinion that Mr Goodwin was lazy and did not bother to make enquiries with Mr Goodwin as to whether there could have been any other possible explanation. Mr Goodwin asserts that the correct approach by the Council should have been to conduct a thorough investigation into the ability of Mr Goodwin to meet the inherent requirements of his job, provide assistance in relation to Mr Goodwin’s medical issues and to consider alternative opportunities with other duties.
Mr Goodwin claims that the evidence shows that the GPS records were accessed in breach of both the Council’s GPS Policy and the Surveillance Devices Act 1999 (Vic).
Mr Goodwin submits the Commission should exercise its discretion to admit the evidence because it is credible, it could not have been obtained or adduced with reasonable diligence for use at first instance and that it is 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. This is particularly so as the evidence is relevant to the second ground of appeal in relation to the alleged fabrication of the complaint and to the fourth ground of appeal because it shows that the Council had concerns about Mr Goodwin’s performance.
Public interest issues
The public interest issues raised by Mr Goodwin are:
a.The appeal raises important questions of principle regarding the Commission’s obligations to properly weigh and assess conduct which is found to have constituted a valid reason for dismissal against other relevant matters.
b.It is in the public interest because of the personal and economic situation of Mr Goodwin. Mr Goodwin’s personal circumstances are ‘exceptional circumstances’ in that they are a combination of factors that are rare, out of the ordinary course, unusual and uncommon.
c.The failure of the Commissioner at first instance to make a careful and detailed analysis of the evidence in circumstances where there is a real, and not remote, possibility of finding issues with a Local Government employer’s lack of transparency in relation to workplace investigative processes and their lack of compliance with its own policies, procedures and statutory obligations.
d.The Commissioner was critical, at paragraph [102] of the Decision, of Mr Goodwin’s lack of particularising his medical needs. The Commissioner’s criticism was incorrect and plainly unjust.
e.The proper exercise of discretion at first instance was so clearly in favour of finding that the dismissal was harsh, unjust and unreasonable, that the decision to dismiss Mr Goodwin’s application for an unfair dismissal remedy constitutes a manifest injustice that engages the public interest.
Grounds of Appeal
The grounds of appeal relied upon by Mr Goodwin are as follows:
Ground 1
The first ground of appeal relied upon by Mr Goodwin is that the Commissioner gave paramountcy to s. 387(a) of the FW Act which deals with whether there was a valid reason for the dismissal. The Commissioner demonstrated that she gave overriding effect to subparagraph s. 387(a) over the remainder of the considerations in subparagraphs (b)-(h) by framing her conclusions in the following manner:
“ [135] In this case I need to weigh some factors which may militate against a finding of serious misconduct.
[144] I have carefully weighed all of the matters before me including the valid reason for dismissal, that this conduct amount to serious misconduct and Mr Goodwin’s personal circumstances. Having done so I do find that the dismissal was not harsh, unjust or unreasonable.”
Ground 2
The second ground of appeal relied upon by Mr Goodwin is that the Commissioner failed to have regard or alternatively sufficient regard, to the possibility that the anonymous complaint was concocted by Mr Goodwin’s direct manager, Mr Colliver, by failing to make a detailed and careful analysis of the evidence. This concocted complaint enabled the Council to improperly obtain GPS data, and therefore the Commissioner erred in allowing the GPS data to be relied upon to justify his dismissal.
This ground was based upon Mr Goodwin’s theory in relation to how the anonymous complaint came about and the Commissioner’s decision not to accept each of the components of the theory. For simplicity, we have summarised the theory and each of its components in the following paragraphs.
Mr Goodwin believes that the anonymous complaint was made by Mr Colliver. Mr Colliver’s emails to Mr Parkinson showed that Mr Colliver had issues with Mr Goodwin and wanted to obtain Mr Goodwin’s GPS records. In his emails, Mr Colliver calls Mr Goodwin “lazy”, “difficult”, “hard to motivate” and states that he has had issues with Mr Goodwin “not doing much work in the past”. Mr Colliver explicitly states in his emails that he has had an employee “check up” on Mr Goodwin. The content of the anonymous complaint should have been compared against the clear attitude of Mr Colliver towards Mr Goodwin as detailed in his emails.
The GPS Policy limits the circumstances in which the GPS records of an employee are able to be accessed. Mr Colliver’s report to Mr Parkinson did not appear to meet the requirements to enable him to obtain the GPS Activity Data for Mr Goodwin, so two business days later, Mr Colliver made an anonymous complaint containing the same information in Mr Colliver’s emails.
This should have been apparent to the Commissioner as the email sent on 1 September 2022 by Mr Colliver to Mr Parkinson contained almost identical information about Mr Goodwin that was coincidently written in the anonymous complaint, being that they both referred to the same shopping centre, used a lower case ‘r’ when spelling the acronym for Road, referred to the same two dates that the vehicle was parked at the shopping centre, had similar writing styles, referred to shopping with respect to Mr Goodwin, referred to a similar alleged timeframe that Mr Goodwin had been at the shopping centre and referred to either GPS or tracking of Mr Goodwin. Further the reference to ‘work ute’ in the anonymous complaint is language usually used by a Council employee rather than a member of the public.
The email sent on 1 September 2022 by Mr Colliver to Mr Parkinson referred to a ‘mowing crew member’ who told Mr Colliver that he saw Mr Goodwin shopping at Coles with a shopping trolley full of groceries. This appears to be the same employee that Mr Goodwin gave evidence of seeing on one of the two dates he was at that shopping centre. It is likely that the mowing crew employee took the photographs of Mr Goodwin’s vehicle and gave them to Mr Colliver who uploaded them as part of the anonymous complaint.
Mr Goodwin attended the shopping centre referred to in Mr Colliver’s email and the anonymous complaint on only two dates. It is implausible that a random member of the public, who alleges that they ‘don’t usually complain’, would, as the GPS data evidences, on the very first instance of seeing a Council vehicle at a shopping centre, take photographs of the vehicle in anticipation of using this in evidence against the employee driving the vehicle. It is an astonishing coincidence that on the second (and only other) date Mr Goodwin was at the same shopping centre, the same random member of the public was there at the same time and took another photograph of the vehicle Mr Goodwin was driving.
Despite the anonymous complainant stating that they saw Mr Goodwin’s vehicle for the “past few weeks” parked at the shopping centre for ‘upwards of 2 hours at a time’, the GPS data provides evidence that this was not possible as Mr Goodwin only commenced working in that area on 22 August 2022 and was not there for upwards of 2 hours at a time, which is not disputed by the Council. The misrepresentation in the anonymous complaint about the frequency and duration of Mr Goodwin’s attendance at the shopping centre was to ensure there were sufficient grounds to warrant approval of the GPS records being accessed.
The Commissioner failed to consider the lack of response from the Council in relation to this serious allegation, and that the Council did not call Mr Colliver to give evidence.
The Commissioner failed to take into account or understand how anonymous complaints are made using a function on the Wyndham City Council’s website, and incorrectly relied on irrelevant information relating to an internal email chain about how the complaint was assigned.
Ground 3
The third ground of appeal relied upon by Mr Goodwin is that the Commissioner erred in failing to have sufficient regard to the personal circumstances of Mr Goodwin and erred in finding that Mr Goodwin’s conduct was ‘wilful’ and therefore constituted ‘serious misconduct’.
The particulars of this ground are that the Commissioner gave insufficient regard to the extensively documented toilet issues Mr Goodwin suffered in relation to voiding dysfunction and the urgency and frequency in which he required the use of toilet facilities. Further, the Commissioner incorrectly found that Mr Goodwin did not attempt to particularise those demands in any way and erred in finding that the alleged misconduct was ‘deliberate or wilful’.
Finally, the Commissioner failed to have regard to the evidence that the stop data showed each stop being a place where toilet facilities were located and failed to have any regard to no other evidence being put forward by the Council as to what else Mr Goodwin was alleged to have been doing instead of using toilet facilities.
Ground 4
The fourth ground of appeal relied upon by Mr Goodwin is that the Commissioner erred in finding s. 387(e) of the Act was not a relevant consideration.
Ground 5
The fifth ground of appeal relied upon by Mr Goodwin is that the Commissioner failed to properly weigh and assess factors set out in s. 387 of the FW Act, particularly s. 387(c) and unjustly found that Mr Goodwin was afforded procedural fairness and a genuine opportunity to respond.
Mr Goodwin claims that it constitutes a manifest injustice for the Commissioner to find that the length of time it took from the date the data was obtained to stand Mr Goodwin down, being over 10 weeks, was reasonable because the Council had to analyse a large amount of data in comparison to the daily sheets. In comparison, the Commissioner found that Mr Goodwin having the data for almost a month with no daily sheets of any type to analyse the data against, was procedurally fair.
Further, the Commissioner unjustly found that it was procedurally fair for the Council to state to Mr Goodwin that they did not require medical records; finding that nothing was stopping Mr Goodwin from obtaining medical records for consideration despite the fact that Mr Goodwin advised in writing on 28 November 2022, after being stood down, that it would take at least 28 days to obtain his medical records under a Freedom of Information (FOI) application. The Commissioner unfairly and unjustly found it was reasonable that despite being advised that Mr Goodwin sought for his medical evidence to be considered, the Council disregarded this. The Commissioner was unfair in her assessment that there was nothing preventing Mr Goodwin from obtaining medical records in circumstances where the statutory timeframe to obtain the records under FOI legislation expired after Mr Goodwin’s termination.
The Council’s submissions
The Council’s submissions are summarised in the following paragraphs.
Further evidence
The Council objects to the application for leave to admit further evidence.
The Council submitted that the records sought to be admitted by Mr Goodwin could have been obtained (assuming they are relevant) through the coercive processes of the Commission. Further, there is not a high probability that if the evidence were accepted, there would be a different outcome. The import and relevance of the documents remains unclear. The documents do not show who accessed the GPS records. They do not show the broader purposes for which the documents were accessed despite the assumptions Mr Goodwin makes or the inferences which he urges the Commission to draw in this regard.
Under the GPS Policy, GPS data may be used for a number of primary purposes, so any access captured in the document could have been for any of these purposes or for another legitimate purpose. The documents could not be considered cogent evidence that would have a high probability of a different outcome. Even assuming the documents could somehow be used to show that the GPS records were accessed for disciplinary purposes, and that such access was unauthorised (about which there is presently no evidence), it is difficult to see how this could lead to a likely inference that the community member complaint was illegitimate or that the associated GPS data access is somehow impugned.
This is particularly so in circumstances where Mr Bell (who managed the GPS data request in relation to Mr Goodwin) has already given evidence, including under cross examination, establishing the legitimacy of that process, which the Commission has accepted. That someone else accessed the same records at some earlier or later time, whether or not that access was authorised, is of dubious relevance to the outcome at first instance.
Further, the documents do not negate the established fact that Mr Goodwin engaged in serious misconduct which he continues to deny, and in respect of which he shows no accountability or contrition.
Mr Goodwin relies on the documents to undermine witness credibility and in support of a conspiracy theory which ignores the fact that Mr Goodwin has admitted the conduct which constitutes the serious misconduct. Mr Goodwin admitted taking many and lengthy absences from work which were not authorised. By his conduct, Mr Goodwin undermined the relationship of trust and confidence which was a particularly important feature of his autonomous work arrangements.
Even if the GPS data and the community member complaint were left to one side, there remains significant evidence of serious misconduct. This includes the direct observations of a colleague in the Council’s mowing division, Mr Goodwin’s own evidence that he did not complete his safety worksheets as required, and the evidence in relation to two other employees who were disciplined at the same time, which present a similar picture of serious misconduct. The consequences of this are two-fold.
First, this other evidence calls into question whether, even if Mr Goodwin’s claims and associated consequences are taken at their highest, there is a high probability that there would have been a different outcome. Second, if the evidence were to be allowed, there would need to be significant further evidence in relation to the documents, explaining the data represented and potentially calling Mr Colliver to give evidence, among others. In circumstances where the import of the evidence is far from clear or cogent of any relevant matter, it cannot meet the high threshold for the admission of further evidence.
Permission to appeal
In relation to permission to appeal, the Council submitted that the grounds of appeal do not legitimately raise any public interest consideration. The public interest test is not satisfied simply by the identification of error or a preference for a different result. There are no wider issues of principle properly raised.
Ground 1
In relation to the first ground of appeal, the Council submitted that there is no doubt that the Commission is required to have regard to the matters set out in s. 387(a)-(h) in determining whether a dismissal is harsh, unjust and/or unreasonable. However, the Commission did exactly that.
There is nothing remarkable in the Commission emphasising consideration of matters relevant to the issue of ‘valid reason’ when a dismissal has occurred on the grounds of serious misconduct, and the existence of a valid reason is hotly contested. The weight given to particular matters is in any event unappealable.
Ground 2
In relation to the second ground of appeal, the Council submitted that there is nothing unreasonable in the Commission’s conclusion that it could not be satisfied on the evidence before it that Mr Colliver fabricated the complaint. That Mr Goodwin considers that the Commission should have arrived at a different conclusion on the evidence before it is not a valid ground of appeal.
Mr Goodwin’s suspicions are based on a coincidence in timing and, more fundamentally, a misconception that Mr Colliver needed a formal ‘complaint’ in the form made in order to access Mr Goodwin’s GPS records. He did not. In fact, under the GPS Policy, the reports made by the mowing employee were sufficient (subject to HR approval), particularly when viewed in light of the existing concerns about Mr Goodwin’s performance and conduct. There was no reason for Mr Colliver to fabricate the complaint. Had Mr Colliver wanted to commence the process, he could have. The process could not have been voided on that basis. The reasons for dismissal, which emerged from the GPS data, were sound, defensible and well founded.
Ground 3
In relation to the third ground of appeal, the Council submitted that it was transparent from the outset that in providing the GPS data, its relevant concern was “unauthorised time spent at non work locations including unauthorised travel”.
In relation to the medical and personal issues, Mr Goodwin’s evidence was riddled with inconsistencies. Again, that Mr Goodwin considers that the Commission should have arrived at a different conclusion on the evidence before it, is not a valid appeal ground. It was clearly open to the Commission to make the findings it did on the evidence before it.
Ground 4
In relation to the fourth ground of appeal, the Council submitted that the Commission correctly found that the Council did not dismiss Mr Goodwin on performance grounds. Although Mr Goodwin’s unauthorised absences likely impacted his performance, it was the unauthorised absences and not any poor performance that constituted the valid reason for dismissal, being serious misconduct.
Ground 5
In relation to the fifth ground of appeal, Mr Goodwin requested his diary, not his daily sheets, to respond to the allegations during the disciplinary process which the Council provided. Even when the Council provided the daily sheets in the proceeding below, Mr Goodwin did not compare the GPS data to those daily sheets.
When the Council presented the GPS data in a way that revealed the issues in a clearer way, it was met with allegations of dishonesty.
Mr Goodwin was at all times during the disciplinary process union represented. He was given multiple opportunities to discuss matters verbally with the Council and to put responses in writing. It was Mr Goodwin’s choice not to engage with the detail of the GPS records. He said so himself, while under oath.
Consideration
Further evidence
Section 607(2) of the FW Act permits the Commission to admit further evidence and take into account any other information or evidence in an appeal brought pursuant to s. 604(1).
Previous decisions of the Commission[13] have referred to the principles governing the discretion to admit new evidence or to consider further material which are set down in Akins v National Australia Bank (Akins).[14] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are firstly that it must be shown 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 and thirdly the evidence must be credible.[15]
It has been recognised by the Commission that, in considering whether to exercise the discretion in s. 607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and that the principles need not be strictly applied.[16] However it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.[17]
The evidence which Mr Goodwin seeks to adduce shows that Council accessed the GPS records in relation to Mr Goodwin’s vehicle from 1 August 2022, prior to the anonymous complaint being made. Mr Goodwin claims that the evidence therefore establishes that Council had been monitoring his GPS activity for some time and became aware that he required frequent stops.
The GPS Policy provides that every vehicle and plant driver is required to expressly agree, in accordance with the conditions in the Policy, to GPS use in Council vehicles and plant.[18] Data may be collected for the following purposes:
“Primary Purpose
· Auditing vehicle and plant performance, including the type and amount of utilisation.
· Work and services allocation, planning and reporting.
· Identifying and addressing staff, vehicle or plant safety and maintenance issues.
Secondary Purpose (Data only accessed for a specific complaint initiated from a source other than the GPS data and limited to the data relevant to that complaint).
· Investigation of complaints relating to vehicles and plant.
· Coaching and development.
· Disciplinary matters.
· Request for Data from Police in accordance with organisational processes.”[19]
In relation to access to GPS data, the GPS Policy relevantly provides:
“Data will be accessed in accordance with the provisions of Council’s Privacy Policy.
Data related to the real time or historical location of vehicles and plant during driver work hours will be available to supervisors and staff of the Department allocated the vehicles and plant to be used for primary purposes.
Data related to vehicle behaviour, during driver work hours including information such as stopping, starting, speed and direction of travel, will be made available to Department Managers with the authorisation of the Manager People and Capability for primary and secondary purposes. Managers must provide a reason they require access to the data including whether it is required for Primary or Secondary purposes for consideration by the Manager People and Capability before approval is granted.
Data related to vehicle and plant maintenance will be available to the Coordinator Fleet Management for primary purposes.
All data collected will be available to the Manager Facilities and Open Space for auditing vehicle and plant performance with the authorisation of the Manager People and Capability for primary and secondary purposes.
Staff can access data about themselves with the authorisation of the Manager People and Capability.
All data accessed will be monitored by audit trails to maintain data security and detect unauthorised access.”[20]
The evidence was provided by the Council to Mr Goodwin in response to the FOI Application so no issue appears to arise with respect to the credibility of the evidence. In relation to the availability of the evidence at first instance, we note that Mr Goodwin had concerns, which he raised in the hearing before the Commissioner, about the authenticity of the GPS data, although he did not anticipate that it would show that Council was accessing GPS data prior to receiving the anonymous complaint. There is no dispute that the Council initially denied that the GPS data sought in the FOI Application existed and that it took almost five months for the Council to release the GPS data to Mr Goodwin. However, if Mr Goodwin had sought an order for the production of documents from the Commissioner on the basis of his concern relating to the authenticity of the GPS data, we consider that the Commissioner would have been likely to order the Council to produce the GPS data and would have ensured that it was produced by the Council for use at the hearing. On this basis we consider that the GPS data could have been obtained by Mr Goodwin with reasonable diligence for use at first instance.
The evidence does not show who accessed the GPS data and the purpose for which the GPS data was accessed. Under the terms of the GPS Policy, data related to the real time or historical location of Mr Goodwin’s vehicle during his working hours could have been accessed by supervisors and staff of the Department in which Mr Goodwin worked for primary purposes. In addition, data related to the maintenance of Mr Goodwin’s vehicle could have been accessed by the Coordinator Fleet Management for primary purposes. Primary purposes are auditing vehicle and plant performance; work and services allocation, planning and reporting; and identifying and addressing staff, vehicle or plant safety and maintenance issues.
Furthermore, the Manager of the Department in which Mr Goodwin worked could have accessed data related to Mr Goodwin’s vehicle behaviour, including information such as stopping, starting, speed and direction of travel during Mr Goodwin’s working hours both for primary and secondary purposes. In addition, the Manager Facilities and Open Space could have accessed all data for auditing Mr Goodwin’s vehicle performance for primary and secondary purposes. In both cases, authorisation of the Manager People and Capability is required. Secondary purposes are investigation of complaints relating to vehicles and plant; coaching and development; disciplinary matters; and request for data from Police in accordance with organisational processes. Data accessed for secondary purposes can only be accessed for a specific complaint initiated from a source other than the GPS data and is limited to the data relevant to that complaint.
As the evidence does not show who accessed the GPS data and the purpose for which the GPS data was accessed, there are insufficient grounds for Mr Goodwin to claim that the evidence establishes that the GPS data was accessed in breach of both the Council’s GPS Policy and the Surveillance Devices Act 1999 (Vic).
Contrary to Mr Goodwin’s submissions, the Council did not claim during the proceedings at first instance that it had never accessed GPS data in relation to Mr Goodwin prior to receiving the anonymous complaint. The Council’s case at first instance was that the Council accessed GPS data after receiving an anonymous complaint and relied upon this data to make findings that Mr Goodwin engaged in serious misconduct. There is no basis for Mr Goodwin to extrapolate that Council submitted to the Commission that it had never accessed GPS data in relation to Mr Goodwin prior to receiving the anonymous complaint and that the further evidence is therefore necessary to rebut this submission.
Even if the evidence is capable of establishing that the Council was unlawfully monitoring Mr Goodwin’s vehicle prior to receiving the anonymous complaint, this would not, in our view, alter the Commissioner’s findings that Mr Goodwin failed to perform the work expected of him as shown by regular and frequent absences from work and that he could not adequately explain these absences. These findings were based on the Commissioner’s consideration of the evidence at first instance which included admissions by Mr Goodwin that, at times, he stopped for significant periods of time at non-worksites.[21] In addition, the allegation that the Council failed to comply with the GPS Policy when it accessed GPS data prior to receiving the anonymous complaint does not have any bearing on the appropriateness of the Council relying on GPS data which it accessed after it received the anonymous complaint. The Commissioner’s finding that the GPS data was a reliable indicator of where Mr Goodwin’s vehicle was stopped at any time was, in our view, both open on the evidence and correct.[22] It supports the conclusion that there was a valid reason for Mr Goodwin’s dismissal. For these reasons we find that the evidence sought to be admitted by Mr Goodwin is not evidence of such a high degree of probative value that there is a probability that there would have been a different result at first instance.
We find that there are no circumstances in Mr Goodwin’s application to admit further evidence that warrant a departure from the principles set out in Akins. For the reasons given, we have determined not to exercise our discretion to admit the further evidence.
Permission to appeal
An appeal under s. 604 of the 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.[23] 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 decision of the Full Court of the Federal Court 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”.[24] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[25] In GlaxoSmithKline Australia Pty Ltd v Makin, 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 the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[26]
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 an appealable error.[27] 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.[28]
Ground 1
In relation to the first ground of appeal, we note that the Commissioner spent a significant part of the Decision considering whether there was a valid reason for the dismissal as there was considerable dispute between the parties in relation to the facts to be determined.
In this regard, the Commissioner made findings in relation to each of the contentions made by Mr Goodwin, namely, whether the GPS data was selected by Council to distort the reality of the situation and was not a complete record of daily activities,[29] whether the complaint which triggered the investigation was fabricated,[30] whether the daily safety sheets were an accurate reflection of the work completed[31], whether Mr Goodwin’s medical condition explained his non-work stops,[32] the effect of the injuries to Mr Goodwin’s son on Mr Goodwin’s productivity,[33] and whether wet weather prevented him from working.[34]
The Commissioner ultimately concluded that the evidence established that Mr Goodwin was absent from the workplace regularly and frequently and that these absences were not adequately explained by Mr Goodwin.[35] The Commissioner determined that by these absences, Mr Goodwin failed to perform work expected of him[36] and that to the extent that Mr Goodwin used his Council vehicle to travel to locations during the working day that were not related to work that he misused his Council vehicle.[37] The Commissioner found that these two reasons constituted a valid reason for the dismissal.[38]
The Commissioner then proceeded to make findings with respect to the other criteria in s. 387. The Commissioner made findings under s. 387(b) that Mr Goodwin was advised of the dismissal in the letter of 21 December 2022 terminating his employment, in the letter advising him of the allegations and in the ‘show cause’ letter provided to him on 8 December 2022.[39] In relation to s. 387(c), the Commissioner found that Mr Goodwin was given multiple opportunities to respond, firstly to the letter of allegations both in writing on 28 November 2022 and 2 December 2022 and in person on 1 December 2022. Mr Goodwin was also given the opportunity to respond to the show cause letter in writing on 12 December 2022. Arising from this response, the Council undertook a further investigation of his conduct prior to his son’s accident.[40] In relation to s. 387(d) the Commissioner found that Mr Goodwin had the support of his union during meetings with the Council.[41] In relation to relation to s. 387(f) and (g) the Commissioner found that the Council is a large employer with a sophisticated and dedicated human resources team and that these were therefore not relevant considerations.[42] In relation to s. 387(h), the Commissioner considered whether the conduct was serious misconduct, differential treatment between Mr Goodwin and another employee and Mr Goodwin’s personal circumstances.
The Commissioner’s consideration at [135] of the Decision in relation to serious misconduct was one of the ‘any other matters’ which the Commissioner may take into account in s. 387(h) in determining whether a dismissal is unfair. It was not in relation to whether there was a valid reason for the dismissal under s. 387(a) as claimed by Mr Goodwin. The Commissioner correctly stated that there were some factors which may militate against a finding of serious misconduct which she was required to weigh up before reaching a final view about whether Mr Goodwin engaged in serious misconduct. These factors included that Mr Goodwin’s non-attendance was likely to have been exacerbated by both his medical condition and his son’s injury. The Commissioner’s finding that Mr Goodwin engaged in serious misconduct after taking into account Mr Goodwin’s personal circumstances and other matters was a matter she considered under s. 387(h). It was not a matter that the Commissioner considered under s. 387(a). We find that there is therefore no basis for Mr Goodwin to rely upon [135] as demonstrating that the Commissioner gave overriding effect to s. 387(a) over the remainder of the considerations in s. 387(b)-(h).
At [144], the Commissioner concluded that the dismissal was not harsh, unjust or unreasonable after weighing up all of the matters before her including the valid reason for dismissal (which arises under s. 387(a)), that the conduct amounted to serious misconduct and Mr Goodwin’s personal circumstances (which both arise under s. 387(h)). The use of the phrase “all of the matters” in [144] and the Commissioner’s consideration of all of the factors under s. 387 in the Decision show that her consideration was not limited to s. 387(a) and (h). Further, the Commissioner’s use of the word “including” in [144] shows that she did not exclude the factors in s. 387(b)-(g) from her consideration as to whether the dismissal was unfair. We are satisfied that that the Commissioner took into account all of the criteria in s. 387 in concluding that the dismissal was not unfair, and that the Commissioner did not give overriding effect to subparagraph s. 387(a) over the remainder of the considerations in subparagraphs (b)-(h). We therefore reject this ground of appeal.
Ground 2
In relation to the second ground of appeal, the Commissioner reviewed the emails between Mr Colliver and Mr Parkinson and the complaint made by a member of the community and concluded that the only similarity between them is that both use “rd” (with no capitalisation) as an abbreviation for “road”.[43] The Commissioner noted that the reference to the use of GPS data in the email of 1 September 2022 and “tracking” in the complaint and found that these references did not assist in resolving the claim of fabrication.[44] The Commissioner referred to Mr Goodwin’s cross examination of Mr Bell and Ms Michail on the use of the term “work ute” in the complaint but, ultimately, the Commissioner concluded that Mr Goodwin’s view as to whether a community member would use such a term did not assist in resolving his claim of fabrication.[45]
The Commissioner noted Mr Goodwin’s submissions about the implausibility of a member of the public making the complaint and that it was likely that someone from the Council was sent to check on him as he noticed that Council vehicles were in the vicinity at the time the complaint said he was at the shopping centre.[46]
The Commissioner found that Mr Goodwin’s claims that he thought he had seen Council vehicles in the vicinity of the shopping centre on one or both of the days mentioned in the complaint and, further, that the photographs attached to the complaint were apparently screen shots from a mobile phone, do not establish that the complaint was fabricated.[47]
Mr Goodwin claimed that the Commissioner incorrectly relied on irrelevant information relating to an internal email chain about how the complaint was assigned. In our view, it was appropriate for the Commissioner to have regard to the email chain to determine the basis upon which the complaint was investigated. The email chain described in the Commissioner’s decision shows that the complaint was eventually forwarded to Mr Bell who ordered the GPS investigation on the basis of the anonymous complaint and that Mr Bell was not aware of Mr Colliver’s emails of 19 August and 1 September 2022 until 18 October 2022 during the investigation into Mr Goodwin’s conduct.[48]
A number of the matters which Mr Goodwin raises in Ground 2 were either not before the Commissioner or not the subject of submissions by Mr Goodwin at first instance. There was no evidence before the Commissioner in relation to how anonymous complaints are made using a function on the Council’s website so there can be no finding that the Commissioner erred by failing to take into account this issue. Although Mr Goodwin submitted at first instance that the investigation was without a proper basis as it had been triggered by a fabricated complaint, Mr Goodwin did not specifically argue that the GPS data was improperly obtained pursuant to the GPS Policy and did not object to the Council tendering the GPS data in the proceedings. In relation to the alleged failure of the Council to call Mr Colliver to give evidence, we note that Mr Goodwin did not specifically refute the concerns expressed by Mr Colliver about his conduct in the emails of 19 August and 1 September 2022 and further that he did not submit that it was Mr Colliver who fabricated the complaint until filing material in reply, which was after Council had filed its evidence. In these circumstances and in the absence of Mr Goodwin providing evidence which established that the complaint was fabricated, there can be no criticism of the Commissioner for not taking into account any lack of response from Council about Mr Goodwin’s allegation.
After reviewing all the evidence the Commissioner determined that she could not conclude that Mr Colliver fabricated the complaint and that she was therefore satisfied that the investigation arising from the complaint was validly undertaken.[49] In our view, it is clear from the Decision that the Commissioner considered all of the material before her and that her conclusion in this regard was soundly based.
Perhaps the most significant allegation in the second ground of appeal is that the anonymous complaint embellished the frequency and duration of Mr Goodwin’s attendance at the shopping centre to ensure there were sufficient grounds to warrant approval of the GPS records being accessed. The suggestion is that there was never a lawful basis for the Council to access the GPS data in relation to Mr Goodwin and that in the absence of the GPS data, there can be no findings that Mr Goodwin engaged in misconduct. We disagree with this contention.
The emails from Mr Colliver to Mr Parkinson show that Mr Colliver had a specific concern about Mr Goodwin and another worker leaving unfinished work for over a week, and also that Mr Goodwin had been seen at a shopping centre on two occasions. In our view, Mr Colliver’s email constitutes a ‘complaint’ for the purpose of the GPS Policy and as such this provided a legal basis for the Council to access the GPS data in relation to Mr Goodwin’s vehicle, regardless of whether the anonymous complaint was made. Even if Mr Goodwin’s submissions about fabrication of the complaint are accepted, the Council still had a proper reason to access the GPS data and there would have been no basis for the Commissioner to exclude the GPS data as evidence.
We reject this ground of appeal.
Ground 3
In relation to the third ground of appeal, the Commissioner accepted that Mr Goodwin suffered from medical conditions and that these conditions may have placed additional demands in relation to him accessing appropriate toilet facilities.[50] However the Commissioner found that the evidence provided by Mr Goodwin in relation to his medical condition did not explain the impact of that condition on his ability to carry out his job or explain the patterns in the work stop data.[51] If the medical condition is severe and required Mr Goodwin to leave worksites for periods of time and on various occasions during the day, the evidence does not show that he raised this with his employer.[52] We find that the Commissioner was therefore correct in finding that Mr Goodwin did not attempt to particularise the extent of his medical needs in anyway.
The Commissioner accepted that Mr Goodwin was embarrassed by his condition but said that this did give him licence to leave work when needed with no consequences.[53] The Commissioner found that only some absences were explained by his medical needs and she was not convinced that his medical condition explained the substantial portion of his time away from worksites.[54]
The Commissioner noted that Mr Goodwin spent time with his son providing some care but also taking him to multiple medical appointments after his son was involved in a serious workplace accident in February 2022.[55] The Commissioner acknowledged the stress the injury to his son would have on Mr Goodwin, but was not convinced that this explained his time away from worksites.[56] The Commissioner found that while it was likely that Mr Goodwin’s non-attendance was exacerbated by both his medical condition and his son’s injury this provides no acceptable reason or excuse for such a limited attendance to work as shown in the data.[57] The Commissioner accepted that an argument could be mounted that, in conjunction with all of the other matters Mr Goodwin was dealing with, his conduct was not deliberate or wilful, if his absences from the workplace had been limited to the two incidents raised in the complaint and maybe a few more.[58] However there were too many occasions when Mr Goodwin was not at a worksite to excuse, and as such given the circumstances of his employment and the position of trust that Mr Goodwin occupied, the Commissioner was satisfied that his conduct amounted to serious misconduct.[59]
The approach of the Commissioner showed that she accepted that Mr Goodwin had personal circumstances which may have affected his work for the Council and that she took these personal circumstances into account in finding that Mr Goodwin engaged in serious misconduct and that the dismissal was not harsh, unjust or unreasonable. We are satisfied that there is no discernible error in the Commissioner’s finding that the absences were too significant to be explained by Mr Goodwin’s personal issues.
In relation to Mr Goodwin’s claim that the evidence showed each stop being a place where toilet facilities were located and that the Commissioner failed to have regard to this, we find that there was no such evidence before the Commissioner, and therefore there was no error on the part of the Commissioner in this regard. In any event, we are not persuaded that the mere existence of toilet facilities could have had a material bearing on the Commissioner’s conclusion that Mr Goodwin’s medical condition did not explain “the substantial portion, let alone the totality, of his time away from worksites”.[60]
In relation to Mr Goodwin’s complaint that the Commissioner failed to have any regard to no other evidence being put forward by the Council as to what else Mr Goodwin was alleged to have been doing instead of using toilet facilities, we find that the Council was not required to provide such evidence. The Council’s case was that Mr Goodwin engaged in unauthorised personal activity during Council time by failing to attend allocated work sites and thus failing to perform to the expected extent and/or standard of his duties. The critical aspect of this finding was that Mr Goodwin was not carrying out work as required, and the Commissioner found that the GPS and other evidence relied upon by Council established this. The Council was not required to speculate about what else Mr Goodwin was alleged to have been doing instead of using toilet facilities in order to establish that Mr Goodwin was not performing work as required.
We reject this ground of appeal.
Ground 4
In relation to the fourth ground of appeal, the Commissioner found that s. 387(e) of the Act was not a relevant consideration as Mr Goodwin’s employment was not terminated for poor performance, but rather misconduct. In this regard, the letter of termination stated that the termination was based upon Mr Goodwin’s wilful and deliberate behaviour amounting to serious breaches of the terms and conditions of his employment specifically relating to fraud, corruption, and dishonesty and that Mr Goodwin’s actions amounted to serious misconduct warranting summary dismissal.
It is well established that the reference to ‘unsatisfactory performance’ in s. 387(e) is more likely to relate to the employee’s capacity to do the job than their conduct and that performance includes factors such as diligence, quality and care taken.[61] The letter of termination establishes that Mr Goodwin’s employment was terminated because of his conduct and not because of his capacity to do his job. In the circumstances, we agree with the Commissioner’s finding that s. 387(e) of the FW Act was not a relevant consideration in her determination of the matter and we reject this ground of appeal.
Ground 5
In relation to the fifth ground of appeal, Mr Goodwin did not submit at first instance that the time Council took to obtain the data and then stand down Mr Goodwin compared to the time that Mr Goodwin had to respond to the allegations was procedurally unfair. The Commissioner was not asked to, and did not make, any specific findings in relation to the reasonableness of the period of time between the investigation commencing and Mr Goodwin being stood down. Similarly, the Commissioner was not asked to, and did not make any specific findings in relation the reasonableness of the period that Mr Goodwin had the data for before responding to the allegations. There was no evidence before the Commission and Mr Goodwin did not submit that he had requested any additional information from Council, including the daily run sheets, to respond to the allegations during the investigation.
Although Mr Goodwin submitted at first instance that it was unfair that the Council did not provide him with more time to compare his diary entries with the GPS data before the termination, he did not provide any evidence to the Commission that he undertook this comparison between the termination and the hearing and that the comparison showed that the GPS data was unreliable.
In relation to Mr Goodwin’s complaint about medical records, the Council did not dispute that Mr Goodwin had a medical condition but expressed concern that Mr Goodwin had at no stage highlighted any requirement to take extensive breaks from work due to that condition.[62] It is unlikely that the Council providing additional time during the investigation for Mr Goodwin to provide medical records would have resulted in a different outcome given that those records that were produced to the Commission do no more than establish the nature of the condition. In the circumstances, no procedural fairness issues in relation to the provision of medical evidence arise. The Commissioner correctly noted that while the medical evidence produced by Mr Goodwin established that he has a medical condition, this evidence does not assist in the determination of the effect of that condition on his ability to carry out his job, nor does it explain the work patterns shown in the stop data.[63] In our view, no error arises with respect to the Commissioner’s findings in relation to s. 387(c) and we reject this ground of appeal.
Conclusion
Having found no errors with respect to the Commissioner’s determination of the matter, we do not consider that the grant of permission to appeal would be in the public interest as the grounds of appeal have insufficient prospects of success. Further, the appeal does not raise any legal or factual issue of significance or general application, there is no relevant diversity of decisions at first instance, the legal principles applied by the Commissioner are not disharmonious when compared with other decisions, and we do not consider that the Commissioner’s decision is counter intuitive or manifests an injustice.
We order that permission to appeal is refused and dismiss the appeal.
VICE PRESIDENT
Appearances:
S Mitchell for the appellant.
R Preston of Counsel for the respondent.
Hearing details:
2023.
Sydney (via Microsoft Teams):
August 23.
[1] [2023] FWC 893
[2] [2023] FWC 893, [110]-[118]
[3] Ibid, [119]
[4] Ibid, [121]-[123]
[5] Ibid, [124]
[6] Ibid, [125]
[7] Ibid, [126]
[8] Ibid, [128]-[136]
[9] Ibid, [137]-[138]
[10] Ibid, [139]-[143]
[11] Ibid, [144]-[145]
[12] Witness Statement of Paul Goodwin dated 10 August 2023, [2].
[13] See for example Max Vincent v Roof Safe Pty Limited[2023] FWCFB 182, [27]; Levin v Douglas and Mann Pty Ltd (T/A Histopath Diagnostic Specialists) [2022] FWCFB 39, [17]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [21]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11]
[14] (1994) 34 NSWLR 155
[15] Ibid, 160
[16] J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963, [95]
[17] JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963, [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia; [2014] FWCFB 1317, [17]; C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [21]-[25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11]; Max Vincent v Roof Safe Pty Limited[2023] FWCFB 182, [27]
[18] Appeal Book, 535.
[19] Ibid.
[20] Appeal Book, 536.
[21] [2023] FWC 893, [76]-[85]
[22] [2023] FWC 893 at [63]-[69]
[23] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194, [17] per Gleeson CJ, Gaudron and Hayne JJ
[24] (2011) 192 FCR 78, [43]
[25] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44]-[46]
[26] [2010] FWAFB 5343, 197 IR 266, [27]
[27] Wan v AIRC (2001) 116 FCR 481, [30]
[28] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28]
[29] [2023] FWC 893, [63]-[69]
[30] Ibid, [87]-[98]
[31] Ibid, [58]-[62]
[32] Ibid, [99]-[102]
[33] Ibid, [103]-[104]
[34] Ibid, [105]-[108]
[35] Ibid, [85], [113]
[36] Ibid, [113]
[37] Ibid, [114]
[38] Ibid, [115]
[39] Ibid, [119]-[120]
[40] Ibid, [121]-[123]
[41] Ibid, [124]
[42] Ibid, [126]
[43] Ibid, [94]
[44] Ibid, [95]
[45] Ibid, [96]
[46] Ibid, [18]
[47] Ibid, [97]
[48] Ibid, [93]
[49] Ibid, [98]
[50] Ibid, [99]
[51] Ibid, [100]
[52] Ibid, [101]
[53] Ibid, [101]
[54] Ibid, [102]
[55] Ibid, [103]
[56] Ibid, [104]
[57] Ibid, [133]
[58] Ibid, [136]
[59] Ibid, [136]
[60] [2023] FWC 893 at [102]
[61] Annetta v Ansett Australia Ltd (2000) 98 IR 233, [16]
[62] Appeal Book, 302.
[63] [2023] FWC 893, [100]
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