Raymond Butler v City of Wanneroo
[2015] FWCFB 2324
•2 APRIL 2015
| [2015] FWCFB 2324 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.400—Appeal rights
s.604—Appeal of decision
v
City of Wanneroo
(C2015/1466)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 2 APRIL 2015 |
Appeal against decision [[2015] FWC 4] of Commissioner Williams at Perth on 8 January 2015 in matter number U2013/15207 - findings of fact not raised with Applicant - failure to accord procedural fairness - permission to appeal granted in the public interest - order quashed.
Introduction
[1] This is an application by Mr Raymond Butler (Mr Butler) for permission to appeal and, if granted, an appeal against a decision made by Commissioner Williams on 8 January 2015 1 and the order also made that day.2
[2] The decision of the Commissioner concerned an application under s.394 of the Fair Work Act 2009 (FW Act) by Mr Butler for an unfair dismissal remedy against his employer, the City of Wanneroo (Wanneroo). The Commissioner’s order dismissed that application.
[3] Mr Butler had been demoted in his employment from a supervisory position to an operator level on a significantly lower annual rate of pay. Consequently, the jurisdiction of the Commission was enlivened because s.386(2)(c) of the FW Act did not apply. This was conceded by Wanneroo.
The decision of the Commissioner
[4] Following the hearing on 6 and 7 August 2014, the Commissioner issued his decision on 8 January 2015. Relevant to the appeal, in the decision the Commissioner made the following findings of fact:
“[39] Having considered all of the evidence on this central issue the majority of the witness evidence is contrary to the applicant’s version. My conclusion is that at the relevant time when Ms Moorfoot was about to enter the screen the isolation switches were not engaged, they were in the vertical position contrary to the evidence of the applicant Mr Butler.
[40] This raises the question of whether the evidence of Mr Butler, that the isolation switches were engaged at this time, was false or honestly given but mistaken.
[41] In his evidence Mr Butler was adamant that the isolation switches were engaged and he has never displayed any doubt about this however he also says that at the same time when he was deliberately checking the switches position he did not notice that the switch box cover was not padlocked closed which is also one of the safety measures to be applied. There is some inherent inconsistency in Mr Butler having positively noticed the switches position but having failed to notice the cover was not padlocked. This does cast some doubt on the truthfulness of his evidence.
[42] Further it is difficult to accept that Mr Butler could make such a glaring mistake as to deliberately look at the position of the isolation switches and mistakenly see them as engaged when this was not the case at all.
[43] I note that it seems initially that some staff involved understood that the alleged safety breach that was concerning the respondent was the failure to padlock the cover of the isolation switch box closed.
[44] A relevant question in considering whether Mr Butler was truthful on the switches position or not is what motivation he may have had for lying to the respondent about whether the isolation switches were engaged.
[45] It is the case that Ms Moorfoot and Mr Butler were in a personal relationship at the time of these events. The respondent as part of its investigation interviewed Ms Moorfoot and pursued its concerns with her that as the Supervisor at the relevant time she had direct responsibility for the apparent safety breach and made it clear that her employment was at risk.
[46] One motive for lying could have been that Mr Butler initially sought to minimise the seriousness of the events to protect Ms Moorfoot by attempting to contain the safety breach to not padlocking the switch box cover but being unaware that the evidence of others would also show that the isolation switches were not engaged. Alternatively or as well another motivation for lying may have been to protect himself from criticism and discipline as ultimately occurred.
[47] Whether these were the motivations or not on balance it seems more likely than not that Mr Butler deliberately lied to the respondent as to his knowledge of the position of the isolation switches during the course of the investigation and in his evidence.” 3
[5] Relevant also to the appeal, the Commissioner determined the following in relation to the legislative criteria under s.387(a) of the FW Act concerning whether there was a valid reason for the dismissal:
“[63] In this case there are valid reasons for the dismissal of Mr Butler related to his conduct effecting the safety and welfare of other employees.
[64] The conduct of Mr Butler was that whilst observing an employee, for whom he was responsible, preparing to enter a piece of plant he failed to notice that one of the safety measures they were required to follow before entering the plant, specifically to lock the cover on the isolation switch box, had not been followed. This failure exposed an employee to grave risk of harm. Separately Mr Butler during the investigation into the safety incident lied to his employer as to the position he had observed the isolation switches to be in.
[65] This conduct of Mr Butler was obviously contrary to the respondent’s relevant policies and his general duty as an employee and his specific duties as the Acting Business Manager Waste Operations.” 4
[6] The Commissioner concluded:
“[74] The Commission has previously found that dishonesty by an employee during an investigation does amount to a valid reason for dismissal that is likely to justify the employee’s dismissal. 5 Mr Butler’s dishonesty would in all the circumstances here warrant his dismissal…
[76] .... In the circumstances, balancing the seriousness of Mr Butler’s conduct in failing to ensure the employee’s safety and in addition his dishonesty during the investigation against the relative penalty of the demotion and considering his lengthy service I find that there is no basis at all to find this was a disproportionate penalty.
[77] The demotion and therefore in this case the dismissal of Mr Butler was not harsh, unjust or unreasonable. The dismissal was not unfair and this application will be dismissed and an order to that effect will be issued.” 6
[7] In summary the Commissioner:
a) made a finding of fact that Mr Butler lied to his employer; and
b) determined that his conduct in this regard was a valid reason for the demotion (dismissal).
[8] Both the finding of fact and the determination were essential elements of the Commissioner’s decision.
The appeal proceedings
[9] In the appeal proceedings Mr Butler relied upon various grounds of appeal including an acknowledgement about procedural errors in the conduct of the employer’s investigation, a lack of a meaningful consideration of Mr Butler’s submissions, delay in the publication of the decision, a failure to apply the facts and significant errors of fact.
[10] Mr Butler also contended that the Commissioner erred in finding that there was a valid reason for the dismissal. In his Notice of Appeal, Mr Butler asserted that:
“The Commissioner identified and adopted as a valid reason for the termination a contention that the Applicant deliberately lied during the investigation which was not a reason relied upon by the Respondent to terminate the employment.
In doing so, the Commissioner exceeded the role of the Commission and put himself into the shoes of the Respondent.”
[11] In the Outline of the Appellant’s Submissions, the issue was put in the following terms:
“The Commissioner wrongly derived a reason not relied on by the Respondent to terminate the employment - namely [the deliberate lie] ... and gave it pre-eminence in the finding of a valid reason.
It is not the role of the Commission to identify alternative reasons that might justify termination.”
[12] We apprehend this ground of appeal to be a criticism of the approach adopted by the Commissioner in the conduct of the case which resulted in a failure to accord procedural fairness.
[13] In the Outline of the Appellant’s Submissions, it was submitted that:
“The proposition [that the Appellant lied to his employer] was not put to the Appellant at any time and as a result, the Appellant was denied the right to reply and consequently, procedural fairness.
The denial of procedural fairness was sufficient to impugn the decision of the Commissioner as it related to a critical component of the Commissioner’s decision.”
[14] Wanneroo opposed the appeal, including the granting of permission to appeal. It submitted that the arguments put forward by Mr Butler “reflect nothing more than ... dissatisfaction with the outcome of the original proceeding.” 7
[15] In relation to the issue of procedural fairness concerning the finding that Mr Butler had lied, Wanneroo contended that such a finding was to be implied because there was a “...consideration of evidence and a preference of one [witness’] evidence over another”. 8
Appeal Principles
[16] An appeal under s.604 of the FW Act involves an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker. 9
[17] The majority of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 10explained in the following passage how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (See Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.” 11
[18] An appeal under s.604 of the FW Act may only be pursued with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. However, there is a note following the subsection to the effect that this does not apply in relation to an application to appeal from an unfair dismissal decision (see s.400 of the FW Act).
[19] The effect of s.400 is twofold. First, the Commission may only grant permission to appeal from an unfair dismissal decision where it considers it is in the public interest to do so (s.400(1)). Secondly, an appeal of an unfair dismissal decision, to the extent that it is an appeal on a question of fact, may only be made on the ground that the decision involved a significant error of fact (s.400(2)).
[20] The way in which the public interest requirement in s.400(1) may be attracted has been described as follows in GlaxoSmithKline Australia Pty Ltd v Colin Makin: 12
“...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.” 13
Consideration
[21] For the purposes of determining the present appeal, we need only deal with the ground relating to procedural fairness.
[22] It is well settled that the Commission is obliged to observe the principles of procedural fairness in the conduct of its proceedings. 14 One aspect of this obligation is the duty to hear a party and allow him or her to have a reasonable opportunity to present his or her case.15
[23] In the proceedings before the Commissioner, Mr Butler was represented by Mr K. Trainer of Industrial Relations and Advocacy Services and Wanneroo was represented by Mr S. Roffey of WALGA Workplace Solutions. There was the same representation of the parties in the appeal before us.
[24] A close examination of the transcript of the proceedings at first instance discloses that the issue of Mr Butler’s truthfulness was only raised as follows:
“Mr Roffey: Mr Butler, I put it to you that your story is not really making sense and that you either saw the isolators at the ONP screen were not engaged and walked away to the mulch area to assist the volunteers loading mulch or you lied about the isolator being engaged at the time of the incident?
Mr Butler: Not lying at all; got nothing to lie about 16…
Mr Roffey: What I don’t understand, Mr Butler, is if you’re telling the truth about the situation which seems highly unlikely based on all the other evidence - - -?
Mr Butler: That’s your opinion, sir.” 17
[25] We accept that a Member of the Commission may use evidence in proceedings for a purpose other than the purpose for which it was adduced. But the parties must be put on notice as to the prospect of any adverse findings based on that evidence in circumstances where no party seeks to rely on the evidence for such a purpose. As Gleeson CJ and Heydon J observed in Suvaal v Cessnock City Council: 18
“A trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case and may proceed to make findings not exactly representing what either party said. But that does not justify the creation of an entirely new case with which the losing party had no testimonial or other evidentiary opportunity to deal.” 19 [Footnotes omitted]
[26] At no point in the proceedings did the Commissioner put Mr Butler on notice that he was considering making an adverse finding that Mr Butler had lied to his employer and that it might found a valid reason for his demotion (dismissal), in addition to the reason relied on by Wanneroo.
[27] In the circumstances, we consider Mr Butler was not given a reasonable opportunity by the Commissioner to answer the case ultimately found against him, being that he had lied to his employer, and that dishonesty constituted a valid reason for his demotion (dismissal). Consequently, there was a failure to accord Mr Butler procedural fairness in relation to the finding and determination then made by the Commissioner.
[28] For the reasons above, we consider we should grant permission to appeal in the public interest from the Commissioner’s order and quash the order of the Commissioner dismissing the application of Mr Butler for an unfair dismissal remedy. We do so. Pursuant to s.607(3)(c)(i) of the FW Act, we also refer Mr Butler’s application for an unfair dismissal remedy to Commissioner Johns and require him to deal with that application.
SENIOR DEPUTY PRESIDENT
Appearances:
K. Trainer, of Industrial Relations and Advocacy Services, for Raymond Butler.
S. Roffey, of WALGA Workplace Solutions, for City of Wanneroo.
Hearing details:
2015.
Melbourne and Perth (via video link):
March 19.
<Price code C, PR562751>
Printed by authority of the Commonwealth Government Printer
1 Raymond Butler v City of Wanneroo,[2015] FWC 4.
2 PR559616.
3 Raymond Butler v City of Wanneroo,[2015] FWC 4.
4 Ibid.
5 Streeter v Telstra Corporation Ltd, (2008) 170 IR 1.
6 Raymond Butler v City of Wanneroo,[2015] FWC 4.
7 Appeal Transcript at PN87.
8 Appeal Transcript at PN124.
9 See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission, (2000) 203 CLR 194 at 205.
10 Ibid.
11 Ibid at [21].
12 [2010] FWAFB 5343.
13 Ibid at [27].
14 See Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd, (1989) 167 CLR 513 at 519 citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, (1969) 122 CLR 546 at 522. See also Coal & Allied Mining Services Pty Ltd v Lawler, (2011) 192 FCR 78 at 83.
15 Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd, (1989) 167 CLR 513 at 519.
16 Transcript in U2013/15207 at PN264.
17 Transcript in U2013/15207 at PN279.
18 [2003] HCA 41 (6 August 2003).
19 Ibid at [36]: Also see Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro, [2013] FWCFB 2191: Lyndoch Living Inc T/A Lyndoch Warrnambool v S Bolden, [2014] FWCFB 5969 and McCulloch v Calvary Health Care Adelaide, [2015] FWCFB 873.
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