Rachna Garg v Eureka Operation Pty Ltd T/A Coles Express
[2017] FWCFB 6059
•17 NOVEMBER 2017
| [2017] FWCFB 6059 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rachna Garg
v
Eureka Operation Pty Ltd T/A Coles Express
(C2017/5309)
VICE PRESIDENT CATANZARITI | SYDNEY, 17 NOVEMBER 2017 |
Appeal against a decision of Commissioner McKinnon at Melbourne on 14 September 2017 in matter number U2017/1774 – permission to appeal – public interest not enlivened – permission to appeal refused.
[1] This is an application, pursuant to ss 400 and 604 of the Fair Work Act 2009 (Cth) (the ‘Act’), for permission to appeal and appeal of a decision of Commissioner McKinnon in matter U2017/1774, published on 14 September 2017; Rachna Garg v Eureka Operations Pty Ltd T/A Coles Express Brandon Park. 1 Ms Rachna Garg (‘the Appellant’) was dismissed by the Eureka Operations Pty Ltd T/A Coles Express (‘the Respondent’) on 24 January 2017, for ‘dishonesty’, after she put fuel in her own car from a fuel pump which was not working correctly. The Commissioner dismissed the Appellant’s unfair dismissal application after finding there was a valid reason for her dismissal and that the dismissal was otherwise neither harsh, unjust nor unreasonable, within the meaning of s 387 of the Act.
[2] The appeal was listed before the Full Bench on 1 November 2017 for oral submissions as to permission to appeal only. Both parties had filed written submissions prior to the hearing. The Appellant was represented by her husband, Mr P. Garg. Mr W Spargo, solicitor, with Ms S Brown represented the Respondent, with permission being granted by the Full Bench, pursuant to s 596 of the Act; noting Mr Garg did not oppose the Respondent being represented by a lawyer.
Decision at first instance
[3] In her decision, the Commissioner identified the Appellant’s conduct which was said to be valid reasons for the decision to dismiss her as:
(a) The taking of fuel without paying on 16 October 2016 and her dishonesty on 25 October 2016 and 24 January 2017, when during meetings with the Respondent, she claimed she had put the fuel in her car to test Pump 17; and
(b) Her encouragement of Ms Puri (another employee) to take fuel on 16 October 2016, without paying.
[4] The Commissioner at paragraph [10] set out the following matters said to be agreed and not in dispute:
1. On 16 October 2016, there was a problem with the fuel pumps at the Brandon Park service station.
2. ‘Pump 17’ was one of the fuel pumps affected. It could pump fuel, but the amount of fuel dispensed did not display on the console screen at the sales counter.
3. The Appellant put fuel in her car using Pump 17 while it was not working properly.
4. Mr Ashwani Kumar, who was also working at the time, used Pump 17 immediately after the Appellant.
5. Mr Kumar paid for his fuel toward the end of his shift on 16 October 2016.
6. The Appellant paid for her fuel on the morning of 17 October 2016 before the start of her shift.
7. On 25 October 2016, there was a meeting between the Appellant and two Regional Area Managers of Coles Express, Mr Bastianpillai and Mr Tony Eatwell, to discuss the incident on 16 October 2016.
8. The Appellant was given a first and final warning at the end of the meeting on 25 October 2016.
9. Mr Kumar’s employment was terminated and he filed an unfair dismissal application.
10. At some point between October 2016 and 24 January 2017, the Appellant and Ms Anu Puri gave witness statements in connection with Mr Kumar’s unfair dismissal application.
11. On 24 January 2017, the Appellant met with Ms Leah Anderson, Legal Counsel for the Respondent and Mr Inderjit Dhillon, Site Manager at Brandon Park. At the end of the meeting, her employment was terminated.
[5] The Commissioner heard evidence from the Appellant and Mr Kumar in support of the Appellant’s unfair dismissal application. Four witnesses gave evidence for the Respondent, namely, Ms Puri, Mr Inderjit Dhillon, Site Manager, Mr Frederick Bastianpillai, Area Manager and Ms Leah Anderson, Internal Legal Counsel. The Commissioner also reviewed CCTV footage of the relevant events of 16 October 2016.
[6] As to the second allegation, the Commissioner found that, as she could not be satisfied that the Appellant had encouraged Ms Puri to steal fuel on 16 October 2016, the allegation had not been made out. As we apprehend no issue is taken with this finding in the appeal, we need say no more about it. However, as to the first allegation, the Commissioner set out her findings at paragraph [52] as follows:
‘[52] On balance, I find that Ms Garg was dishonest when she told Mr Bastianpillai on 25 October 2016 that she had simply forgotten to pay for the fuel on 16 October 2016. There are simply too many inconsistencies in her evidence. I accept that Ms Garg was busy during her shift, and that she was doing her best to assist the customers. I also accept the possibility that at the time she took the fuel, Ms Garg thought she could because she was doing what her supervisor Mr Dhillon had done some weeks before. Whether or not this was the case, the evidence establishes that Ms Garg took fuel and did not pay for it. In my view, it was only later that evening that she realised Mr Kumar had paid for his fuel and that she was isolated. She then urgently sought to fix the problem the next morning before the start of her shift.’ 2
[7] In respect to other matters the Commissioner took into account under section 387(h) of the Act, she held at paragraph [74] to [75] that:
‘[74] Ms Garg alleged that she was treated differently because she was not a member of the Sikh religion. There was no evidence that religion or culture influenced the decision of either Mr Bastianpillai or Ms Anderson to discipline or dismiss Ms Garg, and Ms Anderson expressly denied that it had. I am not satisfied that the decision making process was tainted by the religion of Ms Garg or of any other person.
[75] It is relevant that Ms Garg was paid four week’s (sic) wages in lieu of notice, despite one of the main allegations against Ms Garg amounting to theft, or at least an intention to steal. Ms Anderson gave evidence that theft is a serious matter for Coles Express and that it can have regrettable consequences including that employees sometimes lose their jobs. Ms Garg herself explained that “others had stolen and had not been dismissed”. Unfortunately, that is no answer to the allegations put against her.’ 3
Permission to appeal principles
[8] This appeal is one to which section 400 of the Act applies. 4 Section 400 provides that:
‘(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.’
[9] 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 section 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 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.’ 7
[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 appealable error. 8 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.9
Grounds of Appeal
[11] The Appellant filed an appeal book which, in effect, reflected the material before the Commissioner at first instance. However, the Appellant did not file any submissions in respect of this appeal.
[12] Nevertheless, the principal grounds of appeal outlined by the Appellant at the hearing can be summarised as follows:
(a) The Appellant’s dismissal was harsh, unjust and unreasonable;
(b) The Commissioner erred in accepting various accounts of the Respondent’s evidence;
(c) Another employee of the Respondent stole fuel, but was not dismissed; and
(d) The Appellant was treated differently because she was not a member of the Sikh religion.
Consideration
[13] The question of whether the Appellant was unfairly dismissed had to be determined in accordance with the relevant provisions of the Act. The Commissioner applied those principles in an orthodox manner. We are not satisfied that there is an arguable case of error in relation to this part of the Decision.
[14] Many of the appeal grounds and submissions relied upon by the Appellant relate to the Commissioner’s findings, which led to the conclusion that the Appellant’s dismissal was not harsh, unjust or unreasonable pursuant to s 387 of the Act. We are not satisfied that there is an arguable case of error in relation to those findings.
[15] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.
[16] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[17] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[18] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
P. Garg for the Appellant.
W. Spargo, solicitor, for the Respondent.
Hearing details:
2017
Melbourne:
1 November.
1 [2017] FWC 4805.
2 [2017] FWC 4805.
3 Ibid.
4 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37].
5 (2011) 192 FCR 78 at [43].
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 288, 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].
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