Peter Lacherdis v Mercer (Australia) Pty Ltd
[2023] FWCFB 31
•9 FEBRUARY 2023
| [2023] FWCFB 31 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Peter Lacherdis
v
Mercer (Australia) Pty Ltd
(C2022/6298)
| VICE PRESIDENT CATANZARITI | SYDNEY, 9 FEBRUARY 2023 |
Appeal against decision [2022] FWC 2399 of Commissioner Cambridge at Sydney on 9 September 2022 in matter number U2022/1728 – unfair dismissal application – permission to appeal refused.
Introduction
Mr Peter Lacherdis (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against the decision (the Decision)[1] of Commissioner Cambridge (Commissioner) issued on 9 September 2022.
In the Decision, the Commissioner found that the Appellant’s dismissal by Mercer (Australia) Pty Ltd (the Respondent) on 3 February 2022 was not unfair. By separate Order,[2] the Commissioner dismissed the Appellant’s application for an unfair dismissal remedy.
This matter was listed for permission to appeal only. On 15 September 2022, directions were issued for the filing of material by the Appellant and the matter was listed for hearing on 18 November 2022. The Appellant indicated that he consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. The Respondent was not required to file any material and it did not do so. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted based on the Appellant’s written submissions only.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant was employed by Mercer as a Data Collection – Client Service Office which primarily involved the collection of superannuation asset data and the subsequent uploading of that data to a computer based management tool referred to as Xplan. To perform his role the Appellant would need to log into Xplan on a daily basis, whereupon he would be provided with the tasks that were allocated for him to complete.
The Appellant performed his work from home and had regular email, text, and audio/visual communication with his Manager, Mr Huynh.
The Commissioner set out the factual background that led to the Appellant’s dismissal as follows:
[8] On Wednesday, 22 December 2021, the applicant provided an email to Mr Huynh as part of his regular reporting which identified various clients for which he had performed data collection services. Mr Huynh responded to the applicant in an email which thanked him for his report and indicated that the applicant should have a safe and enjoyable Christmas and New Year break. In response to this email, the applicant sent an email which sought to confirm that he would be working from home as per usual over the entire office closure period from 23 December 2021 to 10 January 2022. Mr Huynh then sent an email to the applicant which advised him that he was required to take leave during the period of the Christmas and New Year shutdown that was being observed by the employer, and that if the applicant had no annual leave entitlement to cover the shutdown period, he would have to take leave without pay.
[9] On Thursday, 23 December 2021, the applicant sent a further email to Mr Huynh which stated inter alia, “I won’t be taking any leave during this office closure period and will be working full time from home as per usual.” The employer’s Lead HR Manager, Ms Kaaks, then sent the applicant two emails the first of which relevantly stated, “The business is shutdown. You are unable to work during a shutdown period.” A short time later, Ms Kaaks sent the applicant a further email which relevantly stated, “… you are instructed to take leave as follows over the Mercer shutdown period.”
[10] On Monday, 10 January 2022, the applicant sent an email to Mr Huynh which relevantly stated, “As I have stated to both you and Felicity Kaaks, I have had no break from work and have been working from home full time since the office closure dates of the 23/12/21–09/01/22.”
[11] On Wednesday, 12 January 2022, the applicant was involved in a Zoom meeting with Mr Huynh and Ms Kaaks during which there was discussion about the applicant not taking leave during the Christmas and New Year shutdown period. The matter of the applicant working during the Christmas and New Year shutdown period was not resolved during the Zoom meeting. Later in the morning of 12 January 2022, the applicant sent a text message to Mr Huynh which advised that he was unwell and would not be working for the remainder of the day. Subsequently the applicant claimed personal leave for the period of his absence on 12 January 2022, which was approved by Mr Huynh.
[12] On Thursday, 13 January 2022, the applicant sent an email to Mr Huynh in which he raised vigorous complaint regarding his leave entitlements and the assignment of what he believed to be unnecessary work. There appeared to be no contact made between the applicant and Mr Huynh on Friday, 14 January 2022. On Monday, 17 January 2022, Mr Huynh sent an email to the applicant which included a list of various tasks that had been assigned to him on Xplan. On Friday, 21 January 2022, Mr Huynh sent an email to the applicant which relevantly asked if the applicant was okay as he had not provided any report updates or other communications during the course of that week.
[13] On Monday, 24 January 2022, Mr Huynh sent a text message to the applicant which stated, “Hi Peter, Checking in to see if everything is okay. Can you please let me know you are safe and okay. Thank you Peter. Regards, William” Mr Huynh did not receive any reply from the applicant, and later that day, 24 January, he sent an email to the applicant which relevantly stated, “I have attempted to contact you today by Teams and on your mobile to check in if you are okay however couldn’t reach you. Can you please either respond or call me to let me know everything is okay.” Mr Huynh did not receive any reply from the applicant, and about 58 minutes later he sent a further email to the applicant which relevantly stated, “We are concerned for your welfare as I have left you some message and tried to call you. I called and left a number for your emergency contact today and will take further steps tomorrow if I do not hear back from you or them. I have also sent you a text and message in Teams. Could you please contact me and let me know you are okay.”
[14] On the following morning, Tuesday, 25 January 2022, in the absence of any contact from the applicant, Mr Huynh sent two further emails to the applicant, the second of which advised that if the applicant made no contact with him by 11 am that day he would ask the NSW police to conduct a welfare check. At 11:16 am, in the absence of any contact from the applicant, Mr Huynh made contact with the NSW police and he requested that a welfare check for the applicant be conducted. Later that day, a NSW police officer telephoned Mr Huynh and advised him that a welfare check had been conducted at the residential address of the applicant whereupon they encountered the applicant who was “at home and well”.
[15] Following the confirmation from the NSW police that the applicant was at home and well, Mr Huynh sent the applicant a letter by email dated 25 January 2022, which sought an explanation including any medical evidence to support the applicant’s absence from work between 14 and 25 January. This letter also directed that the applicant return to work at 9 am on Thursday, 27 January 2022, and to report to Mr Huynh when he had logged into Xplan. Further, this letter indicated that any failure to comply with the directions issued in the correspondence, may result in the employer taking disciplinary action which could include termination of employment.
[16] The applicant did not respond to the directives issued in the letter of 25 January 2022. On 27 January 2022, Mr Huynh sent the applicant a further letter by email dated 27 January 2022, which invited the applicant to attend a Zoom meeting on Wednesday, 2 February 2022, for the purposes of discussion about the possible termination of the applicant’s employment as a result of his unexplained absence from work since 13 January 2022. On Tuesday, 1 February 2022, the applicant sent an email to Mr Huynh which relevantly stated, “I have read your email attached and would like to advise that I have been working from home full time from the 13/01/22-27-01/22.”
[17] The applicant did not attend the Zoom meeting that had been scheduled for the following day, 2 February 2022. Mr Huynh checked the Xplan records which showed that the applicant had not logged into the Xplan system since 13 January 2022.
[18] On 3 February 2022, Mr Huynh wrote to the applicant and notified him of the termination of his employment. The termination of employment letter was delivered to the applicant at his home address via a courier service. The termination of employment letter relevantly advised that the employer was satisfied that the applicant’s absence from work since 13 January 2022, would be treated as an unauthorised absence, and further, that the applicant’s failure to comply with directions to return to work and provide evidence to explain his absence, involved a failure to comply with reasonable management directions and established the basis for the termination of his employment. The applicant was paid in respect of a notice period of four weeks together with any outstanding statutory entitlements.
In considering whether there was a valid reason for the Appellant’s dismissal, the Commissioner found that the Appellant’s absence from work manifested primarily as two particular aspects of his conduct. The first aspect was the Appellant’s failure to login to Xplan on a daily basis and undertake data processing activities allocated to him. The second aspect of the Appellant’s conduct involved his failure to respond in any way to the repeated attempts of Mr Huynh to establish contact. In relation to the second aspect, the Commissioner found that the evidence established the Appellant deliberately refused to respond to any of the numerous emails and text messages that were sent to him by Mr Huynh, and that the Appellant provided no evidence as to any explanation or reason for his repeated refusals to respond to Mr Huynh.[3]
After undertaking a detailed examination and giving careful consideration to all the evidence, the Commissioner concluded that the Appellant had deliberately failed to comply with numerous reasonable and lawful directives, which constituted a sound, well-founded and defensible reason for the Appellant’s dismissal.[4]
The Commissioner found that the dismissal was procedurally fair – observing that the notification of dismissal occurred in writing as a consequence of the Appellant’s failure to attend a meeting with the Respondent on 2 February 2022 – and that there were no other relevant matters to be taken into consideration.[5]
The Commissioner concluded that the Appellant’s dismissal was not harsh, unjust or unreasonable and dismissed the application.[6]
Permission to appeal
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.[7] 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”.[8] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] 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.”[10]
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.[11] 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.[12]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[13]
Appeal grounds, submissions and new material
The Appellant’s grounds of appeal were set out in his Form F7 – Notice of Appeal as follows:
1. A medical condition requiring medical management. This occurred during the period of the [sic] 13/01/22-03/02/22 inclusive. I was unable to perform my work duties and roles due to a medical condition.
2. Please find attached a medical certificate received from Dr Bui on the 12/09/22.
The medical certificate referred to in the grounds of appeal states:
“This is to certify that Mr PETER LACHERDIS was reviewed in our clinic in January and February 2022. He was diagnosed with [REDACTED] requiring medical management. During the period of 13/01/2022 to 03/02/2022 inclusive, Peter was unable to perform his work duties and roles secondary to [REDACTED].
Any kind consideration regarding the above would be greatly appreciated.”
The Appellant submits that the lockdown and working from home arrangements had a negative impact upon his health which started in late 2021 and had a resultant impact upon his ability to work in January 2022.
The Appellant further submits that over the period of 13 January 2022 to 3 February 2022, he was diagnosed with a medical condition and prescribed medication from which he suffered adverse side effects including dizziness, sleepiness, drowsiness and hallucinations. The Appellant submitted that his medical condition and the side effects he suffered caused him to engage in misconduct in January 2022.
In addition to the medical certificate attached to the Form F7 – Notice of Appeal, the Appellant also sought to rely on the following new material on appeal:
(i)A text message exchange between the Appellant and Mr Huynh dated 26 February 2021 in which the Appellant contends he has been subject to bullying at work;
(ii)An email sent by the Appellant to Mr Huynh on 29 March 2021 in which the Appellant declines to attend a weekly catchup meeting with Mr Huynh until a dispute before the Commission is resolved; and
(iii)A hospital discharge summary issued by St Vincent’s Hospital on 15 July 2022 which states the Applicant was admitted as an inpatient for the period of 8 July 2022 to 15 July 2022.
Public Interest Contentions
The Appellant submits that it is in the public interest for the Commission to grant permission to appeal because:
His employment was terminated during a period of personal leave; and
A large number of people in the community experience health and wellness issues as a result of lockdowns and working from home, and it would be unfair for them to lose their jobs because of this.
Consideration
Whether the Full Bench should receive further evidence in the appeal
Before turning to consider the grounds of appeal advanced by the Appellant, we will first deal with whether the Full Bench should receive new evidence that the Appellant seeks to adduce on appeal. Section 607(2) of the Act provides that the Commission may, on appeal, admit further evidence and take into account any other information or evidence, however it is by no means a matter of course that it will do so.
Principles relevant to the exercise of discretion to admit new evidence or to consider further material were considered in Akins v National Australia Bank (Akins)[14] in which the New South Wales Supreme Court identified three conditions that it would need to be satisfied of before the discretion might be exercised to admit further evidence. First, it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance. Second, 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. Third, the evidence must be credible.[15]
The new evidence the Appellant seeks to adduce on appeal comprises:
(i)The medical certificate issued by Dr Bui on 12 September 2022;
(ii)A text message exchange between the Appellant and Mr Huynh dated 26 February 2021 in which the Appellant contends he has been subject to bullying at work;
(iii)An email sent by the Appellant to Mr Huynh on 29 March 2021 in which the Appellant declines to attend a weekly catchup meeting with Mr Huynh until a dispute before the Commission is resolved; and
(iv)A hospital discharge summary issued by St Vincent’s Hospital on 15 July 2022 which states the Appellant was admitted as an inpatient for the period of 8 July 2022 to 15 July 2022.
Having reviewed the material the Appellant sought to adduce on appeal, we observe that the text message between the Appellant and Mr Huynh dated 26 February 2021 was admitted into evidence in the proceedings at first instance as an annexure to the Appellant’s witness statement.[16] As such, it is not new evidence or material.
In relation to the other material, we decline to exercise our discretion under s.607(2) of the Act to admit further evidence for the following reasons.
First, the Appellant has not established how that material could not have been obtained or adduced with reasonable diligence for use at first instance. We accept the medical certificate was issued after the hearing at first instance took place on 28 July 2022 and the Decision was published on 9 September 2022, however it relates to attendances by the Appellant at the Hyde Park Medical Centre in January and February 2022 and there is no explanation as to why it could not have been obtained at that time or shortly thereafter for use at first instance.
Second, we are not persuaded that the material is highly probative evidence such that there is a probability the Commissioner would have reached a different outcome at first instance.
Grounds of Appeal
Having considered the Appellant’s submissions and all the materials filed on appeal, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that the Appellant’s grounds of appeal disclose an arguable case of appealable error.
The argument advanced on appeal by the Appellant that he was dismissed because he was unable to perform his work duties due to a medical condition was not put at first instance. Rather, in the proceedings at first instance the Appellant contended that his dismissal for an unauthorised absence was unfair because he was actually working from home during the relevant period.
It is well established that the appeal process is not intended to provide an avenue for an unsuccessful party to re-run their case or redress deficiencies in the manner in which their case was run at first instance.[17]
Overall, it is clear that the basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s application. The Commissioner applied the correct legal principles, considered and dealt with the evidence that was before him, and made findings of fact based on that evidence. We are satisfied that there is no arguable case of appealable error in relation to the Commissioner’s findings and conclusions.
Public Interest Considerations
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400(1), that any of the matters raised by the Appellant enliven the public interest and justify the grant of permission to appeal. We do not consider that the appeal raises any issue of importance or general application. Nor do we consider that it is arguable that the Decision manifests an injustice, or that the result is counterintuitive or unjust.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Determined on the papers.
[1] [2022] FWC 2399
[2] PR745650
[3] Decision at [33]-[37].
[4] Decision at [38]-[39], [49].
[5] Decision at [40]-[46].
[6] Decision at [50].
[7] 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 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[8] (2011) 192 FCR 78 at [43].
[9] 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].
[10] [2010] FWAFB 5343, 197 IR 266 at [27].
[11] Wan v AIRC (2001) 116 FCR 481 at [30].
[12] 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].
[13] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[14] (1994) 34 NSWLR 155.
[15] Cited in Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6936.
[16] Exhibit 1, Annexure IMG_8414.PNG; Transcript at PN74-PN81.
[17] Esso Australia Pty Ltd v Australian Workers Union & Ors[2015] FWCFB 210 at [17] (citing KA Murphy v SF Finance Pty Ltd (unreported, Print P1395, AIRCFB, 29 May 1997); Curtis v Darwin City Council (2012) 224 IR 174 at [80]).
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