Raguparan Mahesan v Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust t/a Henry Schein Halas
[2015] FWCFB 392
•30 JANUARY 2015
[2015] FWCFB 392
The attached document replaces the document previously issued with the above code on 30 January 2015 by amending Commissioner Riordan to Senior Deputy President Drake in paragraph [2].
Annastasia Kyriakidis
Associate to Justice Ross, President
Dated 30 January 2015
| [2015] FWCFB 392 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust t/a Henry Schein Halas
(C2014/7175)
JUSTICE ROSS, PRESIDENT |
|
Appeal against decision [2014] FWC 7087 of Commissioner Riordan at Sydney on 13 November 2014 in matter number U2013/17284 - public interest not enlivened - permission to appeal refused.
[1] The employment of Mr Raguparan Mahesan (the appellant) with Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust t/a Henry Schein Halas (the respondent) terminated on 16 October 2013. Notwithstanding that he had resigned on four weeks’ notice, the appellant formed the view that he had been dismissed, and consequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act) on 11 December 2013.
[2] The appellant’s application was lodged outside the 21-day period prescribed by s.394(2)(a) of the FW Act; it is accordingly necessary for the appellant to obtain an extension of time under s.394(3). In a decision issued by Senior Deputy President Drake on 24 March 2014, 1 an extension of time was refused. The Senior Deputy President found that although the appellant had a satisfactory explanation for his delay in lodging his application, the application could not be successful because the appellant was not dismissed.
[3] The appellant successfully appealed that decision. On 27 June 2014 a Full Bench of the Commission (Watson VP, Boulton J and Lewin C) issued a decision 2 in which they granted permission to appeal, upheld the appeal, and on a re-hearing of the matter granted an extension of time.
[4] The application was then allocated to Commissioner Riordan for hearing. In a decision issued on 13 November 2014 3 the Commissioner dismissed the application on the basis that the appellant had not been “dismissed” within the meaning of that word in s.386 of the FW Act. The appellant has appealed the Commissioner’s decision, and that is the matter before us.
[5] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). 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”. 4 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 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.” 6
[7] 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. 7 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.8
[8] The appellant’s grounds of appeal as identified in his notice of appeal are lengthy, running to 31 pages, and raise an extensive range of matters. The notice of appeal identifies ten matters which the appellant contends makes it in the public interest for permission to appeal to be granted (noting that each matter is expanded upon in the notice of appeal), which may be summarised as follows:
● The Full Bench’s conclusion in paragraph [6] of the decision of 27 June 2014 that the grant of permission to appeal was in the public interest because of the errors identified in applying the test for an extension of time.
● Accountant’s public duty.
● Professional Code of Ethics (which recommends that resignation may be necessary if an employed accountant faces threats to compliance with fundamental ethical principles which cannot be eliminated or reduced).
● The appellant protected the public interest by upholding the requirement of the US Sarbanes Oxley Act of 2002.
● The protection of current and potential employees from forced resignation for non-agreement with management requests for financial impropriety.
● A need for the Australian Securities and Investment Commission to investigate suspected breaches of the law in financial reporting by the respondent.
● The appellant, who was a long-serving employee in the niche medical devices industry, was unfairly dismissed and has not been provided with a positive reference.
● There were procedural deficiencies by the respondent’s Human Resources personnel in respect of various matters.
● Equal Employment Opportunity.
● The respondent was permitted to be represented at the hearing by lawyers, while the appellant was self-represented.
[9] As earlier stated, the critical conclusion made by the Commissioner was that the appellant had not been dismissed. There was no dispute that the appellant had resigned from his employment with the respondent. However s.386(1)(b) of the FW Act provides that a person has been dismissed if “the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”. In his decision the Commissioner characterised the issue of the application of s.386(1)(b) as a question of whether there was a “constructive dismissal”. While it would be better simply to adhere to the words of the statute, it may be accepted that the expression “constructive dismissal” is widely used as a label to describe an involuntary, coerced or forced resignation that amounts to acceptance by the employee of repudiatory conduct by the employer. 9
[10] In respect of this issue, the Commissioner reached the following conclusions:
“[38] I accept that Mr Mahesan is convinced that he has been the subject of a conspiracy to undermine his position at Henry Schein. I accept that Mr Mahesan believes that he had no option but to resign his employment and was therefore constructively dismissed.
[39] However, I do not agree.
[40] Mr Mahesan resigned his employment. He gave the required four weeks’ notice of his resignation. He worked out his notice without issue. Henry Schein representatives tried to convince him to withdraw his resignation but Mr Mahesan refused. Henry Schein representatives attempted to conduct meetings with Mr Mahesan and his managers to work through the issues, but Mr Mahesan refused to attend these meetings. Unbelievably, Mr Mahesan even rejected the approaches of Mr Cain for on-going short term employment. Mr Mahesan claimed to be “happy to move on”.
[41] Mr Mahesan did not recognise the authority of Ms Wilding. He objected to her being his manager. He was upset with the way in which she was promoted over him to the extent that he continually referred to her in a derogatory manner as his “junior manager”.
[42] Mr Mahesan failed to take notice of the verbal warnings that he had been given by Ms Wilding in relation to his performance. His decision to resign rather than attend a formal meeting to discuss his performance simply confirms his contemptuous attitude towards Ms Wilding.
[43] I cannot find any evidence of any conduct by Henry Schein which could in any way support an argument that Henry Schein intended, or could foresee, the resignation of Mr Mahesan. Mr Mahesan did not have to resign. He should have attended the formal counselling meeting and worked to improve his performance to the satisfaction of his managers. Put simply, Mr Mahesan over-reacted to this situation.
[44] I find that Mr Mahesan was not constructively dismissed but voluntarily resigned his employment.” 10
[11] The findings made by the Commissioner in paragraph [40] alone would make the proposition that the respondent forced the appellant to resign virtually unarguable. There is no challenge that we can discern in the appellant’s notice of appeal or submissions to these findings. The Commissioner in the above passage and in more detail elsewhere in his decision considered, and rejected, the appellant’s contention that various instances of conduct on the part of the respondent forced him to resign. We do not consider that the appellant has demonstrated an arguable case that any of these findings were in error. We note in particular that the appellant’s resignation letter did not suggest, as the appellant has submitted in these proceedings, that he was the victim of retaliatory conduct on the part of the respondent against his alleged refusal, a number of months earlier, to engage in some sort of financial impropriety. The resignation letter appears to have been an intemperate response to a request to attend a meeting to discuss some identified performance issues, and the main allegation in it was that there was a plan to “create an all women’s team” in the department in which the appellant worked. The Commissioner rejected the proposition (at paragraph [28] of his decision) that there had been a “campaign to cleanse the finance department of males”, and we agree with that conclusion.
[12] We do not consider that any of the appeal grounds raise any issue of importance or general application, or identifies any conflict in decisions. The Commissioner’s decision did not manifest any injustice, was not counter-intuitive, and was not contrary to any relevant case authority. We consider the decision to have been correct. We do not consider that the grant of permission to appeal would be in the public interest, and therefore in accordance with s.400(1) permission to appeal must be refused.
PRESIDENT
Appearances:
The Appellant: R. Mahesan on his own behalf
The Respondent: D. Mahendra of counsel with F. Edwards, solicitor for the respondent.
Hearing details:
Sydney
20 January 2015
1 [2014] FWC 1895
2 [2014] FWCFB 4123
3 [2014] FWC 7087
4 (2011) 192 FCR 78 at [43]
5 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46].
6 (2010) 197 IR 266 at [27]
7 Wan v AIRC [2001] FCA 1803 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 See Neil and Chin, The Modern Contract Of Employment (2012) at [11.180]
10 [2014] FWC 7087
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