Paul Huang v Forgacs Engineering Pty Limited
[2014] FWCFB 5549
•19 AUGUST 2014
| [2014] FWCFB 5549 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Forgacs Engineering Pty Limited
(C2014/4293)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 19 AUGUST 2014 |
Appeal against decision [2014] FWC 2264 of Vice President Hatcher at Sydney on 11 April 2014 in matter number U2013/2827.
[1] Mr Huang has appealed Vice President Hatcher’s decision 1to dismisshis application for an unfair dismissal remedy made pursuant to s394 of the Fair Work Act 2009 (the Act).
[2] Vice President Hatcher determined that Mr Huang's dismissal arose from a genuine redundancy within the meaning of s389 of the Act. He was satisfied and found that Forgacs Engineering Pty Limited (Forgacs) did not require Mr Huang's job to be performed by anyone because of the operational requirements of its enterprise; that there was no personal reason for Mr Huang's selection for redundancy arising from Mr Gay’s antipathy towards him; that Mr Huang was not covered by any classification in the Manufacturing and Associated Industries and Occupations Award 2010 or any other award;and that it was not unreasonable for Forgacs to not redeploy Mr Huang to another position.
[3] At the hearing of the appeal on 25 July 2014 Mr Huang represented himself.
[4] To supplement his written submissions provided on 16 June 2014, Mr Huang provided and relied on a list of documents which included the Vice President's decision, correspondence, email regarding a full-time equivalent (FTE) position, the profile of a Mr Bowen, Forgac's Change Team List and his own email regarding an FTE position. The transcript of the proceedings before Vice President Hatcher was available at the hearing on 25 July 2014. Mr Huang made additional submissions by email on 23 July 2014 and provided a statutory declaration. Leave was not given to tender the additional material, a statutory declaration, sought to be tendered by Mr Huang at the appeal.
[5] Forgacs was represented by Mr Mead of the Australian Industry Group. Mr Mead provided an Outline of Submissions 2 and a bundle of documents3 from the hearing before Vice President Hatcher.
[6] In his oral submissions Mr Huang referred to what he described as a number of factual errors and wrong conclusions in the decision of Vice President Hatcher. 4 He submitted that these were significant factual errors in the decision which caused Vice President Hatcher to reach the wrong conclusion and dismiss his application.
[7] Vice President Hatcher found that Mr Aaron Abela left the employ of Forgacs some time between April and early June 2013. 5 Mr Huang pointed to the evidence of Mrs Kirsten Davy who stated that Mr Abela left the employee of Forgacs in early June as demonstrating an error in the decision of Vice President Hatcher. Mr Huang submitted that this error was significant.6
[8] Mr Huang referred to evidence concerning a formal commitment by Mr Pike towards the employment of Mr Turner. Mr Huang submitted that he was not afforded an opportunity to apply for this position when a consideration of redeployment arose and that he should have been. 7
[9] Mr Huang referred to an inconsistency in the evidence before Vice President Hatcher as to whether or not Mr Fairweather, a team member in the planning department, prepared a task list for Mr Gay. 8
[10] Mr Huang referred to contradiction in the evidence of Mr Miller and Mr Gay on the issue of redeployment. 9
[11] Mr Huang suggested that Vice President Hatcher may have been misled as to whether there were three instead of two schedulers. He submitted that this issue was significant because Forgacs may have concealed one of those roles. This issue involved the selection criteria and how each role was assessed. 10
[12] In relation to Mr Bowen's appointment Mr Huang submitted that Vice President Hatcher should have considered when the role arose and why the role was required. Mr Huang considered that he could have performed this role. He submitted that this was significant because the position was created after other people had been made redundant in the environment of a major restructuring. He also pointed to the fact that, in his opinion, there were four, not three, full-time roles. He submitted that this was a major discrepancy. 11
[13] Mr Mead relied on his Outline of Submissions. 12 He provided a short oral submission in response to Mr Huang's identification of the errors in Vice President Hatcher’s decision. He submitted that Vice President Hatcher was aware of the inconsistencies in the evidence, but found on balance that the position offered to Mr Turner arose out of a prior commitment to provide permanent employment once Mr Turner had been in his position for six months, and that that decision was made prior to any decision concerning Mr Huang's redundancy.13These findings were supported by the evidence of Mr Miller and Mr Pike, and Mr Huang submitted that his Honour relied upon this evidence despite the inconsistency in Ms Davy’s evidence.
[14] Mr Mead referred to Mr Fairweather's evidence. 14 Mr Fairweather gave evidence that he had assumed all of the responsibilities previously performed by Mr Huang and that Mr Bowen did not perform that work. To the extent that there were overlapping duties, this need was not apparent when Mr Bowen was employed but arose because of a later error in the accounting systems and was addressed because Mr Bowen had the relevant skill set. These facts were in evidence before Vice President Hatcher and his findings were open to him on the evidence.
[15] A recent Full Bench 15of the Fair Work Commission (the Commission) discussed the principles applicable to appeals from unfair dismissal applications as follows:
“[11] In unfair dismissal matters, permission to appeal can be granted only if the Commission considers that it is in the public interest to do so: s.400(1) of the Act. The way in which the public interest may be attracted has been described as follows:
“... 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.”
[12] The decision under appeal is a discretionary one. Such a decision can be successfully challenged on appeal only if it is shown, for instance, that the discretion was not exercised correctly. It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”” [Endnotes not reproduced]
[16] This is the approach we have applied to our consideration of Mr Huang's appeal.
[17] We are not satisfied that there is any substance in Mr Huang's Grounds of Appeal. We have considered all of the material provided by Mr Huang including the material provided by him subsequent to the hearing of the appeal. We can identify no error in Vice President Hatcher's consideration of the facts of Mr Huang's application. Had we been persuaded by Mr Huang’s submissions that any of the factual matters identified by him were in fact errors, we would still not be persuaded that any of those errors were, either individually or cumulatively, significant. We are not satisfied that any of the areas identified by Mr Huang, either individually or cumulatively, could have, if Vice President Hatcher had relied upon them, contributed to his reaching a conclusion supportive of Mr Huang's application. None of the Grounds of Appeal outlined by Mr Huang is sufficient to attract the public interest. There is no appealable error. We refuse permission to appeal and, to the extent necessary, dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
P Huang on his own behalf
M Mead of Australian Industry Group for Forgacs Engineering Pty Limited
Hearing details:
2014.
Sydney:
25 July.
1 [2014] FWC 2264
2 Exhibit Forgacs 1
3 Exhibit Forgacs 2
4 Transcript PN51
5 [2014] FWC 2264 at para 16
6 Transcript PN53 - PN54
7 Transcript PN54 and PN86
8 Transcript PN55
9 Transcript PN56 - PN57
10 Transcript PN58
11 Transcript PN71-PN83
12 Exhibit Forgacs 1
13 Transcript PN97 - PN98
14 Transcript PN739
15 Baker v Patrick Projects Pty Ltd 2014 FWCFB 2293 [PR549389]
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