Paul Meredith v Chad Group Australia Pty Ltd
[2021] FWCFB 2622
•10 MAY 2021
| [2021] FWCFB 2622 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Paul Meredith
v
Chad Group Australia Pty Ltd
(C2020/5982) (C2021/1038)
VICE PRESIDENT CATANZARITI | SYDNEY, 10 MAY 2021 |
Appeal against decision [2020] FWC 1467 of Commissioner Harper-Greenwell at Melbourne on 13 July 2020 in matter number U2019/11012 and appeal against decision [2021] FWC 182 of Commissioner Harper-Greenwell at Melbourne 27 January 2021 – permission to appeal refused – appeal filed out of time – application to extend time dismissed.
[1] Mr Paul Meredith (the Appellant) has lodged two appeals under s 604 of the Fair Work Act 2009 against two decisions of Commissioner Harper-Greenwell (the Commissioner). The first decision, Paul Meredith v Chad Group Australia Pty Ltd [2020] FWC 1467 (the Merits Decision) was handed down on 13 July 2020 and dealt with the merits of an unfair dismissal application filed by the Appellant. The second decision, Paul Meredith v Chad Group Australia Pty Ltd [2021] FWC 182 (the Remedy Decision) was handed down on 27 January 2021 and dealt with the remedy awarded to the Appellant in respect of his unfair dismissal application.
[2] On 31 July 2020, the Appellant appealed the Merits Decision by filing a Notice of Appeal (the First Appeal). This appeal was made within the 21-day period as set out in Rule 56(2) of the Fair Work Commission Rules 2013 (Cth) (the Rules). In the First Appeal, the Appellant indicated that he also sought to appeal the Remedy Decision which at the time, had not yet been handed down. On 3 September 2020, the Appellant and his legal representatives appeared before a differently constituted Full Bench of the Commission regarding the appeal of the Merits Decision. At this hearing, the Appellant agreed to suspend the hearing of the appeal of the Merits Decision pending the outcome of the Commissioner’s Remedy Decision.
[3] As outlined above, the Commissioner handed down the Remedy Decision on 27 January 2021. Subsequently, on 25 February 2021, the Appellant filed another Notice of Appeal (the Second Appeal) to appeal the Remedy Decision. The Second Appeal has been filed late and as such, the Appellant is seeking an extension of time to file the appeal.
[4] In the Second Appeal, the Appellant indicated that he wished for both appeals to be joined together. Both appeals were joined, and the Appellant has advanced the same grounds of appeal in both. Therefore, we will deal with both appeals together in this decision.
[5] The appeals were subject to a telephone hearing on 6 April 2021.The Appellant sought permission to be legally represented. The Full Bench granted the Appellant’s application for permission to be represented pursuant to s 596(2)(a) of the Act, there being no objection from the Respondent. The Respondent was represented by a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) and thus, did not need permission to appear.
[6] For reasons which will be stated, permission to appeal is refused. Given that we will refuse permission to appeal, we will also dismiss the application for an extension of time.
Decision under appeal
[7] The Appellant was employed by the Respondent as a truckdriver from 3 November 2016 until his dismissal on 11 September 2019. 1 The Respondent contended that the Appellant was dismissed for “serious misconduct”. The Appellant did not deny that the incident leading to his dismissal occurred but denies that his conduct was serious misconduct and contended that he was unfairly dismissed.
[8] The Respondent is a family-operated business. Its three Directors and co-owners are Mr Harry Chudasko (Harry) and his sons Mr Adrian Chudasko (Adrian) and Mr David Chudasko (David).
[9] On the day of his dismissal, the Appellant returned to the Respondent’s warehouse after a day of deliveries. At this point, he was approached by Mr Campbell (an employee of the Respondent) who inquired about whether he had picked up an arch. An altercation then occurred between the Appellant, Mr Campbell, and David. The Appellant acted in an aggressive manner and used abusive language towards Mr Campbell and David during this altercation. Specifically, he said to Mr Campbell “go fuck yourself” and to David, his manager, he said “you can go and get fucked. Fuck off. Go fuck yourself.” 2 The Appellant does not deny this conduct occurred.3 Accordingly, the Commissioner found that the Appellant had been dismissed for a valid reason, being his abusive conduct towards Mr Campbell and David.4
[10] While the Appellant does not deny his conduct and use of abusive language, he justifies such conduct by alleging he had been bullied for years during the course of his employment and finally “snapped”. 5 In the matter at first instance, the Appellant alleged that there were numerous instances where he was bullied.6 The Commissioner considered each individual allegation of bullying made by the Appellant and the evidence in relation to them. Whilst she found that some of the factual matters alleged had occurred, she was not satisfied that the conduct amounted to bullying.
[11] In addition to the Appellant’s conduct, the Respondent relied on an alleged warning letter issued to the Appellant following an altercation between him and Mr Piccin who was, at the time, an employee of the Respondent, to ground a valid reason for dismissal. The Appellant and Mr Piccin gave different accounts of the altercation that occurred between them. The Commissioner preferred the evidence of Mr Piccin. 7 On 12 October 2018, the Appellant returned to the factory at a later time than he was expected. Upon his arrival, Mr Piccin approached him and asked him to deliver certain tiles before taking a lunch break as it was a time sensitive task. The Appellant refused to do so and eventually became abusive towards Mr Piccin. The Appellant said “fuck off you smart arse cunt” and proceeded to call Mr Piccin a “fucking cunt”. Mr Piccin gave further evidence that the Appellant had previously made a number of violent threats towards him and had previously called him “arrogant, smartarse, dumb arse, a cunt”.8
[12] Following this incident, Mr Piccin wrote an email to Harry, Adrian and David detailing his concerns. After receiving this complaint, Adrian and Harry organised a meeting between Mr Piccin and the Appellant. The Commissioner found that the Appellant did attend this meeting and during that meeting, he was counselled about his conduct towards Mr Piccin. The significance of these events is that they relate to a first and final warning letter that the Respondent alleges was provided to the Appellant and signed by him. 9 The Appellant denies ever having been provided with the warning letter and that it was fraudulently signed by someone else.10
[13] In support of his contention that the signature on the warning letter was forged, the Appellant relied on expert evidence provided by Mr John Ganas, a principal examiner of a private company providing forensic document examination and digital examination purposes. Mr Ganas formed the view that the signature on the warning letter was not genuine and was by a writer other than the Appellant. Mr Ganas formed this view by assessing a photocopy of the warning letter and an approximate mix of fifty percent original documents and fifty percent photocopied documents all provided by the Appellant.
[14] After considering all the evidence related to the warning letter, the Commissioner was satisfied that David met with the Appellant and issued him with the warning letter in relation to his conduct towards Mr Piccin. The Commissioner noted that even if she were mistaken as to the issuing of the warning, the evidence supports at the very least that the Appellant was verbally counselled for his conduct towards Mr Piccin. In any event, the Commissioner found that the warning was issued close to twelve months prior to the dismissal of the Appellant and as such, she contributed little weight to it in her findings. 11
[15] Ultimately then, the Commissioner found the Appellant was dismissed for a valid reason, being his self-admitted abusive conduct towards David and Mr Campbell. 12 In making this finding, the Commissioner also considered but ultimately gave little weight to, the evidence that the Appellant had already received a prior warning regarding his conduct.13
[16] Despite finding that the Appellant was dismissed for a valid reason, after applying the relevant legislative provisions, the Commissioner found that the Appellant’s dismissal was procedurally unfair and harsh in the circumstances. 14
[17] The Commissioner then handed down the Remedy Decision and ordered that the Respondent pay the amount of $3033, plus superannuation, less appropriate taxation to the Appellant. 15
Principles of Appeal
[18] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 16 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[19] Section 400 of the Act applies to this appeal. It 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.”
[20] 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 of the Act as “a stringent one”. 17 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.18 The public interest is not satisfied simply by the identification of error, or a preference for a different result.19 In GlaxoSmithKline,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.” 20
[21] 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. 21 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
Grounds of Appeal
[22] Numerous grounds of appeal were filed, however in the written submissions, the Appellant narrowed the scope of the appeal. We deal with the written submissions together with oral expansion of those submissions.
[23] The Appellant asserts that the Commissioner at first instance made a significant error of fact pursuant to s 400(2) of the Act. Broadly stated, the Appellant contends that the Commissioner erred by misinterpreting the evidence of the expert witness and in doing so, she overlooked the deceptive actions taken by the Respondent, namely the alleged forging of the Appellant’s signature on the warning letter. The Appellant argues that the warning letter is the only evidence relied upon by the Respondent to show that the Appellant had been given prior warning regarding his conduct. It is further contended that the alleged forging of the letter by the Respondent calls into question the veracity of the statements made by witnesses for the Respondent.
[24] The Appellant takes particular issue with the Commissioner’s findings at paragraphs [103c] and [103d] of the Merits Decision.
[25] Paragraph [103c] reads:
“Mr Meredith’s medical condition was not disclosed to the examiner prior to conducting the examination and in giving his evidence Mr Ganas did not have any knowledge of what Mr Meredith’s medical condition was and therefore any view he had formed as to how Mr Meredith’s medical condition would or could have affected his findings was an uniformed view.”
[26] Paragraph [103d] reads:
“A significant number of the documents examined were not original documents which Mr Ganas rightly concedes presents a number of limitations to his findings.”
[27] The Appellant submits that Mr Ganas addressed the issue regarding the Appellant’s medical condition during cross-examination and affirmed that even if he had been aware of the Appellant’s medical condition, he would not have changed the way he performed his assessment. Regarding the issue of photocopies, the Appellant submits that it was Mr Ganas’ evidence that the accuracy of his findings was not limited when looking at photocopied signatures.
[28] We do not accept the contention that the Commissioner misinterpreted the expert evidence and erred in the amount of weight she afforded to it. However, even if we were to accept that the Commissioner misinterpreted the expert evidence, and as a result did not give it due weight, this would not have changed the outcome of the proceedings. At paragraph [105] of the Merits Decision the Commissioner relevantly found:
‘[105] … I am satisfied when considering the evidence overall that upon returning from leave David met with Mr Meredith and issued him with a warning regarding his conduct towards Mr Piccin. If I am mistaken on the issuing of the warning, the evidence supports that at the very least Mr Meredith was verbally counselled during the mediation meeting for his conduct towards Mr Piccin. The warning was however issued close to twelve months prior to the dismissal and given my earlier findings, being that Mr Meredith’s conduct was permitted to continue without further management I contribute little weight to the warning in my findings.
(emphasis added)
[29] Given the above, it cannot be said that the Respondent relied solely upon the written warning as evidence that the Appellant was counselled regarding his conduct prior to his dismissal. Moreover, the Commissioner did not place great weight on the warning, whether it be written or verbal, in finding that there was a valid reason for the Appellant’s dismissal. It is the Appellant’s own admission that he verbally abused his supervisor and a fellow employee that grounded the Commissioner’s finding of a valid reason for dismissal. 22
[30] Furthermore, even if we were to take the Appellant’s submissions at its highest and thus call into question the evidence of the Respondent’s witnesses, the outcome of the matter would remain unchanged in circumstances where the Appellant has himself admitted to the serious misconduct relied upon.
[31] As outlined above, the Commissioner found that the Appellant’s abusive conduct was, in itself, enough to constitute a valid reason for dismissal. On the evidence before her, this was a finding that was reasonably open to the Commissioner to make. Furthermore, we find no error in the determination of the compensation to be paid to the Appellant. The Commissioner applied the correct legal principles to determine the quantum of the compensation to be paid.
[32] Accordingly, we do not consider that the Appellant has identified a significant error of fact. There is no arguable case of appealable error.
Permission to appeal
[33] Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Commissioner reached her Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on the evidence before her. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400(1) that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The Decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[34] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s 400(1) of the Act. Accordingly, we also dismiss the application to extend time to lodge the appeal.
[35] Permission to appeal is refused. Application for extension of time is dismissed.
VICE PRESIDENT
Appearances:
Dr J McConvill on behalf of the Appellant
Mr T Fumiaono-Page on behalf of the Respondent
Hearing details:
2021.
Telephone hearing.
6 April.
Printed by authority of the Commonwealth Government Printer
<PR729670>
1 Merits Decision at [2] and [4].
2 Ibid at [85].
3 Ibid at [86].
4 Ibid at [108].
5 Ibid at [14].
6 Ibid at [23] – [32].
7 Ibid at [91].
8 Ibid at [44].
9 Ibid at [7].
10 Ibid at [32].
11 Ibid at [105].
12 Ibid at [108]
13 Ibid at [105].
14 Ibid at [124].
15 PR717624.
16 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd)
17 (2011) 192 FCR 78; (2011) 207 IR 177 [43].
18 O’Sullivan v Farrer and another (1989) 168 CLR 210 [216] – [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 [44]-[46].
19 see: GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [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 at [28].
20 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
21 Wan v AIRC (2001) 116 FCR 481 at [30].
22 Merits Decision at [86].
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