Peter Mabior v Rew Bros Pty Ltd T/A Rew Bros Cleaning
[2019] FWCFB 20
•16 JANUARY 2019
| [2019] FWCFB 20 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604—Appeal of decision
Peter Mabior
v
Rew Bros Pty Ltd T/A Rew Bros Cleaning
(C2018/6565)
DEPUTY PRESIDENT SAMS | SYDNEY, 16 JANUARY 2019 |
Permission to appeal sought against decision [2018] FWC 6731 of Deputy President Anderson at Adelaide on 31 October 2018 in U2017/7202.
Introduction
[1] Mr Peter Mabior has applied for permission to appeal and appeal of a decision of Deputy President Anderson issued on 31 October 2018 1 (the Decision) that his dismissal by Rew Brothers Pty Ltd (Rew Brothers) was not unfair.
[2] Mr Mabior contends that there are errors of fact and law in the Decision because:
(a) The Decision does not define ‘unfair dismissal;
(b) The Decision was not based on the evidence or interests of Rew Brothers, but their compromise, and his documents were not considered;
(c) The Decision does not deal with the fact that he made a complaint about bullying by Mr David Gibbs, Leading Hand and Mr Haydn Gartner, Supervisor on 25 June 2018, shortly prior to his dismissal;
(d) He was forced not to provide a representative;
(e) He has been held responsible for the actions of another person, Simon Mabil, who has a similar name to him; and
(f) He was neglected and bullied at work, but the Decision does not address the precedent of bullying and Rew Brothers is still following him.
[3] The appeal was listed for permission to appeal only before the Full Bench of the Commission on 12 December 2018. Mr Mabior appeared for himself and Mr P Rew appeared for Rew Brothers.
[4] At the hearing, Mr Mabior emphasised his concerns about the definition of unfair dismissal, being mistaken for Simon Mabil and what he says was a failure by the Deputy President to deal with his complaint(s) about bullying on 25 June 2018 which he says led to the dismissal.
Approach on permission to appeal
[5] An appeal under s.604 of the Fair Work Act 2009 (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. There is no right to appeal and an appeal may only be made with the permission of the Commission.
[6] This appeal is one to which s.400 of the Act applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. Section 400 also provides that an appeal of an unfair dismissal decision on a question of fact can only be made on the ground that the decision involved a significant error of fact.
[7] 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”. 2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment3. 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.” 4
[8] 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. 5 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.6
[9] 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. 7
Consideration
[10] In the Decision, the Deputy President detailed a series of events he appears to have considered relevant to the dismissal of Mr Mabior, including those prior to 6 July 2018 and the events of 7 July 2018. The following matters were identified as relevant to his finding that the dismissal was for a valid reason:
(i) That Mr Mabior was a casual employee working on a regular and systematic basis and with a reasonable expectation of continuing employment;
(ii) That Mr Mabior spoke rudely to, and deliberately refused to take instruction from his supervisor, Haydn Gartner, on 7 July 2018 on at least three separate occasions;
(iii) That Mr Mabior’s claim that Mr Gartner had bullied him was not made while he was employed, was constructed during the unfair dismissal proceedings and was without foundation; 8
(iv) That Mr Mabior’s claim that Mr Gibbs had bullied him had been raised during his employment and that Rew Brothers’s response was that ‘overseeing work was not bullying’;
(v) That all requests Mr Gartner made to Mr Mabior on 7 July 2018 were reasonable and lawful requests and reasonable management action taken in a reasonable manner;
(vi) That requests made by Mr Reading, Mr Legierski and Mr O’Leary to Mr Mabior on 7 July 2018 were also reasonable;
(vii) That Mr Mabior’s refusal to recognise Mr Gartner’s authority as leading hand on 7 July 2018 and his failure to follow the directions of other supervisors and managers on that day was a valid reason for dismissal;
(viii) That Mr Mabior did not work safely on 7 July 2018 when he:
a. objected to a machine being switched off by Mr Gartner so he could clean it; and
b. recklessly reversed Mr Gartner’s decision to turn down the pressure of a cleaning foam hose, causing it to spray on and near him; and
(ix) That Mr Mabior did not efficiently or effectively clean his area, including when asked to do so.
[11] We are not persuaded that there is an arguable case of error in relation to any significant finding of fact in the Decision. The Deputy President’s findings centred on the conduct of Mr Mabior on 7 July 2018. They were made in light of his decision to prefer the evidence given by witnesses for Rew Brothers over the evidence of Mr Mabior about the events of that day.
[12] As explained to Mr Mabior in the hearing of his application for permission to appeal, there is no definition of unfair dismissal in the Act. Rather, section 387 of the Act sets out the range of factors that must be considered in forming a view about whether a dismissal is, or is not, ‘harsh, unjust or unreasonable’ and therefore unfair. In this regard, we do not consider there is an arguable case of appealable error in what we consider was an orthodox approach to the Deputy President’s consideration of whether Mr Mabior’s dismissal was unfair, including by reference to the relevant statutory criteria.
[13] The Decision discloses that the Deputy President did have regard to Mr Mabior’s alleged complaint of bullying by Mr Gartner on 25 June 2018 and rejected it as without foundation. However, we accept that there was no finding about Mr Mabior’s complaint that Mr Gibbs had threatened him by saying he had obtained a fire arms licence on 25 June 2018, and what bearing, if any, such threat played in the events leading to his dismissal. 9 Arguably, the failure to make such a finding was an error. However, it must be seen in the context of what appears to be an absence of any corroborating evidence on the material before him, as well as the Deputy President’s general finding that where factual discrepancies arose, he preferred the evidence of Mr Rew, Mr O’Leary and Mr Gartner over the evidence of Mr Mabior.10
[14] Mr Mabior filed short statements, but no supporting materials in the proceedings at first instance. Rew Brothers filed its contemporaneous notes and other relevant documents. We are not persuaded there is an arguable case of appealable error in relation to the findings of fact made by the Deputy President or in relation to the credibility of the witnesses.
[15] In relation to the contention that Mr Mabior was forced not to provide a representative, we understand this submission to relate to Mr Mabior’s (incorrect) interpretation of publicly available information on the Commission’s website about the need to obtain permission to be represented by a lawyer or paid agent in Commission proceedings. It is also the case that no application for permission to be represented was made. Neither party was represented in the proceedings, which the Deputy President conducted by determinative conference. We are not persuaded that there is an arguable case of appealable error in connection with any requirement to appear without representation in the proceeding below.
[16] As to the alleged case of mistaken identity, there is no foundation for this assertion on the material before us. Rew Brothers explained that the issue arose from a typographical error in its response material, related to its use of a response prepared in separate, earlier unfair dismissal proceedings involving a person named Simon Mabil. The explanation is corroborated by a review of the Commissions files. 11 None of the contemporaneous notes relied upon by the Deputy President make any reference to ‘Simon’ or ‘Mabil’ and documents relied on by Rew Brothers in relation to Mr Mabior set out both his full name and address. We do not accept that it is arguable that either Rew Brothers or the Deputy President were confused about the allegations made against Mr Mabil, as opposed to Mr Mabior.
[17] In our opinion, the materials do disclose a level of tension between supervisors and their subordinates at Rew Brothers, both in relation to Mr Mabior and others. That is a matter for Rew Brothers to address more generally in the interests of a productive and harmonious working environment, but it does not establish an arguable case of appealable error in relation to the Deputy President’s findings about the events of 7 July 2018. We also note that there is nothing before us to corroborate Mr Mabior’s statement in his Notice of Appeal that Rew Brothers is still “following him”. If that is so, it is a matter of concern which should be referred to the appropriate authorities.
Conclusion
[18] In our view, there is an arguable case of error in the Decision in relation to the failure to deal with the alleged threat by Mr Gibbs. As we earlier observed, this matter must be seen in context and in our view, is unlikely to have affected the conclusion ultimately reached by the Deputy President in circumstances where Mr Gibbs does not appear to have had any relevant connection to the events of 7 July 2018. In any event, without more the arguable error does not enliven the public interest.
[19] We are not satisfied that the appeal raises issues of importance and general application. Instead, it turns on its own particular facts and circumstances. It is not apparent that the Decision manifests an injustice or leads to a counter intuitive result. The legal principles applied in the Decision appear to us to be harmonious with other relevant decisions of the Commission.
[20] We are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is refused. We so order.
DEPUTY PRESIDENT
Appearances:
Mr P Mabior for himself.
Mr P Rew for the respondent.
Hearing details:
2018.
Sydney:
December 12.
Printed by authority of the Commonwealth Government Printer
<PR703570>
1 Mabior v Re Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd [2018] FWC 6731
2 (2011) 192 FCR 78 at [43]
3 O’Sullivan v Farrer (1989) 168 CLR 210; Hogan v Hinch (2011) 85 ALJR 398 at [69]; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
4 [2010] FWAFB 5343, 197 IR 266 at [27]
5 Wan v AIRC (2001) 116 FCR 481 at [30]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; 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]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
8 [2018] FWC 6731 at [54]
9 Witness Statement of Peter Mabior filed on 18 September 2018
10 [2018] FWC 6731 at [13]
11 U2017/11205
0
8
0