Peter Blythe v David Hartree Design Associates Pty Ltd T/A Hartree and Associates Architects
[2016] FWCFB 8643
•15 DECEMBER 2016
| [2016] FWCFB 8643 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
David Hartree Design Associates Pty Ltd T/A Hartree and Associates Architects
(C2016/5987)
VICE PRESIDENT CATANZARITI | BRISBANE, 15 DECEMBER 2016 |
Appeal against decision [[2016] FWC 6160] of Deputy President Sams at Adelaide on 15 September 2016 in matter number U2015/13079.
[1] Mr Peter Blythe (the applicant) has applied for permission to appeal against a decision of Deputy President Sams issued on 15 September 2016 1 (the Decision). The Decision concerned an application by the applicant for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act)in respect of the termination of his employment with David Hartree Design Associates Pty Ltd T/A Hartree and Associates Architects (the respondent). Deputy President Sams found that the applicant had resigned from his employment and dismissed his application.
[2] The applicant disputed that he resigned on 17 September 2015 after a meeting with Mr Hartree and has applied for permission to appeal. In his application for permission to appeal, the applicant challenged Deputy President Sams’ findings of fact and contended that Deputy President Sams took into account irrelevant factors. He submitted that the Decision was attended by appealable error and that permission to appeal should be granted in the public interest.
[3] At the hearing before Deputy President Sams, the applicant submitted that he had not verbally resigned at a meeting with Mr Hartree and Mrs van Wyngaarden on 17 September 2015. After considering the evidence of the parties, Deputy President Sams preferred Mr Hartree’s version of events and rejected that of the applicant and Mrs van Wyngaarden. 2 In relation to the meeting on 17 September 2015 Deputy President Sams found:
“[168]I am further satisfied the applicant then said he was resigning effective immediately and he would put it in writing the next day. I do not doubt Mr Hartree accepted his resignation. I reject the applicant’s submission that Mr Hartree had an ‘agenda’ to force his resignation. For reasons I referred to at paragraph [147] above, it was immaterial that the applicant changed his mind after the meeting…”
[4] Deputy President Sams then went on to list eight determinative factors and circumstances which had led to his finding that the appellant had resigned his employment during the meeting on 17 September 2015. 3
[5] The applicant’s Grounds of Appeal were lengthy and confusing. We have amalgamated several grounds because they overlapped or were similar and what we have identified as the key Grounds of Appeal are summarised below:
● The applicant did not resign and Deputy President Sams was not certain that the employee resigned.
● The applicant did not have a history of poor behaviour in the workplace. Mr Hartree did not address with the applicant any alleged bad behaviour and did not terminate the employment of the applicant for not complying with the warning letter.
● The applicant did not believe that Mr Hartree wanted to get rid of him.
● Deputy President Sams stated that the applicant was not entitled to a mediator.
● Mr Hartree breached the employer/employee agreement and the applicant challenged the respondent regarding breaches of the employee/employer agreement. Mr Hartree was also aware that safety issues were of concern.
● Credibility was wrongly assessed.
● The respondent has always had the applicant’s wife’s mobile number, email and office work number and the applicant had always copied the Associate Director into all correspondence.
● Mrs van Wyngaarden was absent from the office on sick leave when Deputy President Sams stated she was assisting the applicant.
● The applicant and his witness did agree that the meeting of 17 September was heated.
● It is irrelevant that the applicant copied Mrs van Wyngaarden into his email correspondence.
[6] In relation to the public interest the applicant submitted that “…it is definitely in the public interest that an Applicant is not unfairly disadvantaged because he represented himself” and that “…it is in the public interest that significant evidence of fact sustains judgement that fairly reflects the truth of such evidence”. He submitted that permission to appeal should be granted on that basis.
Principles on appeal
[7] This appeal is one to which s.400 of the FW Act applies 4. 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.
[8] In the Federal Court Full Court decision 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”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 The Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the instances when the public interest might be attracted:
“... 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.” 7
[9] In order to grant a permission to appeal, an arguable case of appealable error should be demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 8 However, an error made by the Member at first instance is not necessarily a sufficient ground for the grant of permission to appeal.9
[10] In an appeal from a decision involving an exercise of discretion, an error in the exercise of discretion must be demonstrated: 10
“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.”
Consideration
[11] The applicant contended that Deputy President Sams was not convinced by his own conclusion. At paragraph [170] he stated “Even if I am wrong about the applicant’s resignation, it seems to me that Mr Hartree had reasonable grounds to have dismissed the applicant at the end of the meeting on 17 September 2015”. Deputy President Sams was not expressing any uncertainty regarding his finding that the applicant resigned. Deputy President Sams indicated that he was satisfied that, had the applicant not resigned, it was open to the respondent to have dismissed the applicant for a valid reason, being his conduct at the meeting.
[12] The applicant contended that he did not have a history of poor behaviour in the workplace. He also contended that the respondent did not dismiss him after a warning letter, seeming to infer that he was therefore eventually dismissed rather than resigned. The applicant submitted that parts of paragraph [151] of the Decision were incorrect, namely:
“However, in my view, at least from mid-2015, the applicant’s interactions with Mr Hartree and his responses to Mr Hartree’s directions were regularly argumentative, provocative and disrespectful…In the period from around October 2014 to mid-2015, Mr Hartree simply wanted the applicant to change his behaviour...”
[13] We are satisfied that Deputy President Sams thoroughly analysed the evidence regarding the workplace relationship between the applicant and Mr Hartree. For example, at paragraph [19] of the Decision, Deputy President Sams set out the written warning letter issued to the applicant on 17 September 2015. The letter demonstrates instances in 2014 and 2015 when Mr Hartree found the applicant’s behaviour problematic and set out a proposed course forward for change. We are satisfied that there is evidence which supports Deputy President Sams’s findings of fact on these issues.
[14] One appeal ground seems to be based on a misquote from the Decision. The closest excerpt from the Decision related to the appeal ground is at paragraph [152] of the Decision: “It was around this time that the applicant believed Mr Hartree was set on a course (an ‘agenda’) of forcing his resignation.” We are satisfied there is no arguable appealable error in relation to this part of the Decision.
[15] The Ground of Appeal that alleges that Deputy President Sams stated that the applicant was not entitled to a mediator at any meetings post 17 September 2015 has no substance. Although Deputy President Sams stated at paragraph [93] that the applicant was not entitled to a mediator, this was not his own finding. This was a summary of Mr Hartree’s reply statement. Again, at paragraph [113], Deputy President Sams was summarising the cross-examination of Mr Hartree. Deputy President Sams did not make a finding as to whether there should have been a mediator present.
[16] The applicant submitted that Mr Hartree breached the employer/employee agreement and that the applicant had challenged this with the respondent. In the Decision at paragraph [151], Deputy President Sams dealt with this issue and rejected the applicant’s submission:
“The applicant’s claims that Mr Hartree had breached the employment contract by reducing his income over five years and not paying him five weeks’ pay in lieu of notice, are misconceived. Firstly, Mr Hartree’s uncontested evidence was that he paid the applicant back all the income he had agreed to waive, rather than being made redundant. Secondly, payment in lieu of notice does not arise in circumstances of a resignation without notice. In the period from around October 2014 to mid-2015, Mr Hartree simply wanted the applicant to change his behaviour.”
[17] Deputy President Sams did not find that the applicant had challenged his employment agreement with Mr Hartree. Contrary to the applicant’s assertion that he consulted the respondent regarding breaches of his employment agreement conditions, the applicant acknowledged during the proceedings that he had called in a WorkSafe inspector without consulting Mr Hartree first. 11 The applicant also acknowledged that over his six years in the workplace the working conditions regarding safety had been the same and he had not challenged them.12 This appeal ground must be rejected.
[18] The applicant submitted that the credibility of Mrs van Wyngaarden and Mr Hartree was wrongly assessed. He contended that this was due to limitations imposed by him being self-represented. In paragraph [162] of the Decision, part of which is extracted below, Deputy President Sams explained why he preferred the evidence of Mr Hartree to that of the applicant and Mrs van Wyngaarden:
“This collaboration was no better demonstrated than in the applicant’s re-examination of Mrs van Wyngaarden after an adjournment during her cross-examination. It was clear that the applicant had a scripted list of questions, which Mrs van Wyngaarden had known in advance. She had prepared answers, even to the point of her being asked questions about matters not raised in cross-examination, which could be supported by documents she had with her in the witness box.”
[19] Deputy President Sams found that Mr Hartree was a truthful witness. 13 Deputy President Sams also found that Mr Hartree was controlled and respectful and that his evidence was consistent.14 We are satisfied there is no arguable appealable error in relation to Deputy President Sams’s findings regarding Mr Hartree’s credibility.
[20] In paragraph [159] of the Decision Deputy President Sams said:
“It is very odd that apart from the applicant’s work email at the time he was employed, there was no means of communicating with him by phone or personal email. After the applicant left the respondent’s employ, there was no means of communicating with him, except through Mrs van Wyngaarden’s phone or email address, including in respect to modelling work required by BHP...”
[21] The applicant contended that the respondent had the mobile number and postal address of the applicant and had the applicant’s wife’s mobile number, email and office work number. Deputy President Sams did not rely on this finding of oddness to make any determinative finding. If this remark of Deputy President Sams arose from an error of fact, we are satisfied that was not a significant error of fact.
[22] The applicant contended that Mrs van Wyngaarden could not have assisted him, as Deputy President Sams stated in the Decision at [160], because she was on sick leave. There was evidence before Deputy President Sams that after the appellant resigned, Mrs van Wyngaarden had been communicating with Ms Boyd regarding a BHP contract, which was meant to be undertaken by the respondent but was subsequently awarded to the applicant’s business. 15 We are satisfied that there is no arguable appealable error in relation to the finding by Deputy President Sams, on the balance of probabilities, that there was assistance provided by Ms van Wyngaarden to the applicant.
[23] The applicant appeals the finding of Deputy President Sams that the applicant and Mrs van Wyngaarden agreed that the meeting of 17 September 2015 was heated. The Decision stated:
“…Mrs van Wyngaarden said the meeting was heated and emotional. By contrast, the applicant said he calmly responded to the 10 conditions required by Mr Hartree and was otherwise not able to put his position because of Mr Hartree’s threatening and intimidating behaviour.” 16
[24] Deputy President Sams resolved this factual issue after hearing the evidence of all parties. We are not persuaded that there is an arguable appealable error in relation to this finding or that this ground of appeal otherwise enlivens the public interest.
[25] The applicant contended that it is irrelevant that the applicant copied Mrs van Wyngaarden into his email correspondence, as this was a regular operational disclosure. Paragraph [159] of the Decision states:
“…In any event, the extent of the dependence of the applicant on Mrs van Wyngaarden’s advice and support is no better demonstrated than by the evidence that she was copied into almost every communication he had with Mr Hartree…”
[26] The applicant contended that Deputy President put undue weight on the fact that Mrs van Wyngaarden was being copied into the emails of the appellant. He submitted that in her position as Associate Director, it would be reasonable that she could be copied into emails, and this should not be regarded as evidence of an inappropriate dependent relationship between the applicant and Ms van Wyngaarden.
[27] When contextualising the applicant’s and Mrs van Wyngaarden’s relationship, Deputy President Sams considered the fact that Mrs van Wyngaarden was actively assisting the applicant with drafting emails to the respondent, and that the applicant was able to procure the BHP contract for his business, which was meant to be undertaken by the respondent. These were matters which were appropriate for his consideration.
[28] Many of the arguments raised by the applicant are an attempt to reargue the case put below and seek a different outcome. It is not open to an appeal bench to substitute its view of the matters that fell for determination before Deputy President Sams in the absence of error of an appealable nature in the decision at first instance and we cannot identify any arguable appealable error in Deputy President Sam’s decision.
[29] We have not been able to identify any matter in the appeal that might enliven the public interest. We are not persuaded that the appeal raises any issues of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the decision of the Deputy President manifests an injustice, or that the result is counterintuitive. The legal principles applied do not appear to us to be disharmonious when compared with other recent decisions dealing with similar matters.
Conclusion
[30] Permission to appeal is refused. The appeal is dismissed.
VICE PRESIDENT
Appearances:
P.Blytheon his own behalf.
D.Vilensky for David Hartree Design Associates Pty Ltd.
Hearing details:
2016.
Sydney:
9 November.
1 [2016] FWC 6160
2 Decision at [166] – [169]
3 Decision at [168]
4 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]; (2011) 282 ALR 561
5 [2011] FCAFC 54 at [43]; (2011) 192 FCR 78
6 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 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
7 [2010] FWAFB 5343 at [27], 197 IR 266
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; 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]
10 House v The King (1936) 55 CLR 499 at 505
11 Decision at [44]
12 Ibid.
13 Decision at [163]
14 Ibid.
15 Decision at [45] - [47]
16 Decision at [166]
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