Quentin Cook v Australian Postal Corporation t/a Australia Post
[2016] FWCFB 7203
•28 OCTOBER 2016
| [2016] FWCFB 7203 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Australian Postal Corporation t/a Australia Post
(C2016/5339)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 5692 of Commissioner Cambridge at Sydney on 18 August 2016 in matter number U2015/16961.
Introduction
[1] On 7 September 2016 Mr Quentin Cook lodged a notice of appeal in which he applied for permission to appeal and appealed under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Commissioner Cambridge issued on 18 August 2016 1 (Decision). In the Decision, the Commissioner found that Mr Cook’s dismissal by the Australian Postal Corporation t/a Australia Post (Australia Post) was unreasonable and unjust, and determined that Australia Post should pay Mr Cook $4,514 compensation. A separate Order was issued giving effect to the Decision2 (Order).
[2] At the time of his dismissal, Mr Cook was employed by Australia Post as a Postal Deliver Officer (PDO), working at and from its delivery facility in the Sydney suburb of Seven Hills. He was summarily dismissed for serious and wilful misconduct and, at the hearing before the Commissioner, Australia Post relied on seven allegations of serious misconduct to justify the dismissal. The Commissioner found under s.387(a) of the FW Act that all but one had been confirmed and represented a valid reason for Mr Cook’s dismissal:
“[62] Therefore, when the findings made by the employer in connection with the seven allegations which established serious misconduct are properly, carefully and objectively analysed, all of those allegations other than allegation five, can be supported as representing valid reason for the dismissal of the applicant. The particular findings of serious misconduct made by the employer in respect to allegations one, two, three, four, six and seven have been verified, and represent valid reason for the dismissal of the applicant.”
[3] The Commissioner then dealt with the remaining matters required to be dealt with under s.387 of the FW Act and when dealing with s.387(h), concluded (footnotes omitted):
“[69] The procedure adopted by the employer included one glaring error. The employer consciously permitted the applicant to continue to perform work up until the dismissal on 17 December 2015, in the full knowledge of the nature and extent of the misconduct for which it subsequently invoked a summary dismissal.
[70] Consequently, the employer applied a level of severity to the misconduct of the applicant which was inconsistent with permitting him to continue work throughout the investigation period. This continuation of the applicant in the performance of work meant that the employer could not subsequently summarily dismiss on the basis of the misconduct that the employer was aware of when it permitted the applicant to continue work. In such circumstances, notwithstanding the severity of the applicant’s misconduct, the failure to suspend the applicant from duty meant that the employer was required to implement any dismissal with notice, rather than summarily.”
[4] The Commissioner found that this “procedural error” rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust dismissal. 3
[5] In relation to remedy, the Commissioner found that reinstatement would be inappropriate because he considered the valid reason he had identified provided a proper basis upon which Australia Post would have legitimately lost trust and confidence in Mr Cook. In assessing compensation, the Commissioner stated he had had regard to the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 4 and that he had taken into account all of the circumstances of the matter, including the matters set out in s.392(2) of the FW Act. His assessment was that there was no evidence of any effect that any order of compensation would have on the viability of Australia Post and he noted that Mr Cook had been employed for almost 38 years. However, the Commissioner also considered that on account of his “more recent conduct”5, had Mr Cook not been summarily dismissed “his employment was likely to have been properly terminated within a very short period.”6
[6] Having noted that the amount of compensation he was prepared to provide did not include any component for shock, distress or humiliation caused by the manner of the dismissal and that Mr Cook had made only minimal attempts to mitigate his loss, the Commissioner determined that Mr Cook should be awarded an amount of compensation commensurate with the notice period he should have received. The Commissioner did not address s.392(3) of the FW Act, which requires the Commission to reduce the amount of compensation by an appropriate amount on account of misconduct by the employee which contributes to the employer’s decision to dismiss the employee.
[7] Mr Cook challenged the Commissioner’s conclusions regarding the remedy to be awarded and in confirming this before us, Mr Cook was in essence indicating that he was challenging the Commissioner’s decision not to reinstate him. He submitted the reasons for his dismissal were trifling, insignificant and absurd, did not constitute serious and wilful misconduct and should not stand as a template for future decisions.
[8] Mr Cook’s grounds of appeal involved the following propositions:
(1) The determination that Australia Post’s finding of serious misconduct regarding Mr Cook conducting a paid employee representative role in blatant defiance of the warnings provided by the employer had established a valid reason for his dismissal was a significant error of fact because the Commissioner had failed to give proper consideration to evidence that Mr Cook was not a paid agent of the organisation set up to represent the legitimate industrial interests of it clients during any period that Mr Cook was being paid by Australia Post and had failed to make the distinction between the functionary and the entity and payment for secondary employment as opposed to payment for incurring ordinary expenses.
(2) The Commissioner’s failure to acknowledge that there was an ongoing dispute regarding meal breaks under the dispute settlement procedure of the applicable enterprise agreement was a significant error of fact and it was in the public interest that regard be had to dispute settlement procedures in enterprise agreements.
(3) The Commissioner’s failure to give any consideration to s.772(1)(d) or (e) of the FW Act was a significant error of law and it was in the public interest that they be defined by common law.
(4) The effect of the Commissioner’s decision was to limit the application of the Freedom of Association provisions of the FW Act which was contrary to the public interest.
Consideration
[9] An appeal under s.604 of the FW 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.
[10] This appeal is one to which s.400 of the FW 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.
[11] 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”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment9. 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
[12] 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. 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
[13] In respect of Mr Cook’s application for permission to appeal, the primary consideration is whether any arguable case of error is disclosed.
[14] The first ground needs to be considered having regard to the findings made by the Commissioner in paragraphs [58] and [60] of the Decision. The distinctions Mr Cook sought to maintain in submissions regarding his relationship with the company he established to provide representative services (ELISA) were illusory. The evidence was that Mr Cook was the company’s sole director and shareholder and it was open to the Commissioner to make the findings outlined at paragraph [58] of the Decision:
“[58]The workplace representative role of the applicant was transformed once the applicant was receiving payment or other direct reward from those that he was representing. Essentially, the applicant had obtained secondary employment, the purpose of which was directly inimical to the interests of the employer. In the context of the registered organisations regime, the applicant had moved from being a workplace representative to a paid Union official. The applicant’s position was plainly untenable and represented a manifest conflict of interest.”
[15] At paragraph [60], the Commissioner dealt further with the distinctions Mr Cook sought to make in order to justify his behaviour (footnotes omitted):
“[60]Although the applicant refused to openly acknowledge the conflict of interest, his own evidence revealed an unfortunate attempt to disingenuously conceal his fundamental understanding of the conflict that had been created once he started obtaining financial benefit from his representative activities. The applicant stated; “I have never received, solicited or accepted any money to represent the legitimate industrial interests, grievances or enquiries of any employee at work.” During cross-examination, the applicant sought to defend this statement on the basis that he did not receive payment for representation activities conducted “at work” as opposed to representation activities that he conducted away from the workplace. Despite there being no practical capacity to distinguish whether payments made to ELISA were applied only to representation activities conducted away from the workplace, the underlying and inescapable inference of the statement acknowledges the conflict associated with receiving money to conduct an activity inimical to the interests of the employer.”
[16] The Commissioner gave consideration to the transformed nature of Mr Cook’s role as a paid workplace representative. It was open to him to conclude that it represented a conflict of interest, despite Mr Cook’s assertions to the contrary, and that Mr Cook’s continuing to perform the role, in defiance of warnings from his employer that doing so would jeopardise his employment, represented serious misconduct. The Commissioner’s other findings of misconduct included further failures to comply with lawful and reasonable directions. We do not consider the Commissioner’s finding that Australia Post would have lost trust and confidence in Mr Cook constitutes a significant error of fact.
[17] The second ground has no substance. The Commissioner acknowledged there was a dispute between Mr Cook and Australia Post relating to meal breaks and the operation of clause 16.9.1 of the Australia Post Enterprise Agreement 2013 (Agreement) but having considered the substance of the dispute, concluded that clause 16.9.1 of the Agreement did not permit an employee to determine the duration of meal breaks. He was satisfied that in three separate instances, Mr Cooks’ actions in relation to meal breaks were contrary to site practices and directions of his supervisor, thereby representing a valid reason for his dismissal. It was open to him to approach the meal break dispute in this way.
[18] As to the third ground, the Commissioner made reference in the Decision to the submissions made by both parties in relation to s. 772(1)(d) and(e) of the FW Act. These provisions do not fall within Part 3-2 of the FW Act, so while the Commissioner did not directly deal with the submissions the parties made regarding them, we do not consider it was necessary for him to do so in order to determine the application before him.
[19] In relation to the fourth ground, the submission of Mr Cook was that the effect of the Commissioner’s Decision was to prevent a form of freedom of association. This is not sustainable. In the Decision, the Commissioner acknowledged the role Mr Cook had played as a workplace representative outside of the registered organisations regime over many years and had noted that Australia Post had “quite correctly” 13 recognised him in this role and afforded him appropriate accommodations and protections. The Commissioner, appropriately in our view, took issue with Mr Cook carrying out this function only after he began receiving payment from those whom he was representing in secondary employment on the basis it represented a conflict of interest.
[20] Mr Cook has therefore not demonstrated any arguable case of appealable error of a nature that would attract the public interest. Nor do we consider that he has identified any other basis for the grant of permission to appeal.
[21] For the reasons given, we are not satisfied that it would be in the public interest to grant permission to appeal. In accordance with s.400(1) permission to appeal must therefore be refused.
VICE PRESIDENT
Appearances:
Q. Cook on his own behalf.
J. McLeod of counsel for the Australian Postal Corporation t/a Australia Post.
Hearing details:
2016.
Melbourne:
10 October.
1 [2016] FWC 5692
2 PR 584216
3 Decision at [73]
4 Print R0235, (1998) 88 IR 21
5 Decision at [78]
6 Ibid
7 Coal and Allied Operations Pty Ltd 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) 243 CLR 506; 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 at [27], 197 IR 266
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 Decision at [57]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR586200>
2
8
0