Renato Lusica v Linfox Armaguard Pty Ltd
[2015] FWCFB 869
•5 MARCH 2015
The attached document replaces the document previously issued with code [2015] FWCFB 874 on 5 March 2015.
To amend the document reference number from [2015] FWCFB 874 to [2015] FWCFB 869 and amend the print code on page 5, from PR560766 to PR560761.
Associate to Justice Ross, President
Dated 5 March 2015
| [2015] FWCFB 869 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Linfox Armaguard Pty Ltd
(C2014/8474)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 5 MARCH 2015 |
Appeal against Decision of Commissioner Roberts ([2014]FWC 6600) at Sydney on 10 December 2014 in matter number U2014/5974 - public interest not enlivened - permission to appeal refused.
[1] Mr Renato Lusica (the appellant) was dismissed from his employment with Linfox Armaguard Pty Ltd (the respondent) on 10 March 2014. He subsequently made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 26 March 2014.
[2] The reason for the appellant’s dismissal was that he was said to be engaged in serious misconduct by watching a sexually explicit movie (Experts Guide) whilst he was on duty in the control room of the respondent’s premises located at Rosehill in New South Wales.
[3] The appellant’s unfair dismissal remedy application was heard and determined by Commissioner Roberts, who issued a decision on 10 December 2014 1 in which the Commissioner concluded that the appellant’s dismissal was not unfair and dismissed the application. An order giving effect to that decision was also made.2
[4] The appellant seeks permission to appeal the Commissioner's decision and order 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’. 3 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. 4 In GlaxoSmithKline Australia Pty Ltd v Makin (GlaxoSmithKline) 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.” 5
[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. 6 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.7
[8] The appellant advanced two broad propositions which he says establish that it is in the public interest that permission to appeal should be granted. First, the appellant says that there is a diversity of decisions at first instance and thus a requirement for guidance by a Full Bench. Secondly he says that the decision of the Commissioner is manifestly unjust and results in a substantial injustice.
[9] As to the first proposition, the appellant identified a number of first instance decisions, which were said to make good his proposition. 8 We first observe that two of the decisions (in which the applicant was successful at first instance) identified by the appellant have been overturned on appeal.9 Secondly, it is clear that each of the decisions identified concerned different factual circumstances and were determined according to those factual circumstances by application of consistent principles taking into account the relevant statutory considerations set out in s.387 of the FW Act. The reference to a diversity of decisions at first instance in GlaxoSmithKline is to be understood as a reference to a divergence of principle or inconsistent application of principle at first instance, not to different outcomes having regard to the factual circumstances applicable in a given case. Accordingly the appellant’s first proposition is not made out and does not attract the public interest.
[10] Turning to the second proposition, namely that the Commissioner’s decision is manifestly unjust and results in a substantial injustice, the appellant says that the Commissioner’s discretion miscarried because, his decision that the termination of the appellant’s employment was not unfair, did not accord with particular findings made by the Commissioner. Specifically the appellant points to the Commissioner’s findings that:
● The respondent tolerated employees accessing Internet and watching movies during periods of low activity provided they did not neglect their duties;
● The source of the sexually explicit movie was unimportant; and
● The respondent’s IT policy was a neutral consideration.
[11] Merely pointing to these particular findings and suggesting therefore that the Commissioner’s discretion miscarried misunderstands the weighing exercise undertaken by the Commissioner in taking into account the statutory criteria set out in section 387 of the FW Act.
[12] At paragraphs [54] – [67] of the Commissioner’s decision, the Commissioner deals with the question whether there was a valid reason. At paragraph [63] the Commissioner concludes that there was a valid reason for the termination of the appellant’s employment for misconduct based on the events of 28 February 2014. At paragraph [62] the Commissioner sets out his conclusions as to the relevant factual matters which concerned the events of 28 February 2014 and therefore which bear upon his conclusion that there was a valid reason. The Commissioner came to the following conclusions:
“[62] After a thorough review of the oral and documentary evidence available to me, I have come to the following conclusions:
1. At the relevant time, Armaguard at Rosehill tolerated employees accessing the internet and watching movies during low activity periods in the Control Room, provided that they did not thereby neglect their duties.
2. I am unable to safely come to any conclusion as to how Mr Aitchison’s external hard drive came into Mr Lusica’s possession. In any event, the method by which Mr Lusica obtained the external hard drive is a matter of small importance to my consideration. It was Mr Lusica’s use of the hard drive which led to the termination of his employment and this was not the fault of Mr Aitchison.
3. Any possible breach of Armaguard’s IT Policy has been a neutral consideration in my decision making.
4. I am satisfied that Mr Lusica was aware of the Company’s WDEO Policy but cannot conclude that him watching the Movie was a conscious breach of that Policy.
5. It is uncontested that Mr Lusica viewed the Movie on the evening of 28 February 2014. I am satisfied that this was a busy period at Rosehill and am further satisfied that Mr Lusica watched the movie on and off for some 60 minutes.
6. Having viewed the Movie myself, I believe that it would have been apparent to Mr Lusica from the first frame that the content was highly sexually explicit and absolutely unsuitable for viewing in the workplace.
7. Mr Lusica’s characterisation of the Movie’s content as ‘educational’ is merely disingenuous and a later invention to justify his conduct.
8. I am satisfied that Mr Lusica was aware that he should not have watched the Movie and his actions in minimising the screen and taking care to avoid detection, are indicative of this. In his evidence, Mr Lusica described himself as being ‘curious’ when he turned the movie on. After he became curious I believe that his desire to keep watching it overcame his commonsense. This in no way excuses Mr Lusica’s behaviour or absolves him of responsibility for taking the foolish decision which he did.
9. I am satisfied that the layout of the Control Room would have allowed other persons to see the Movie on Mr Lusica’s computer screen. I further accept the evidence of Mr Cataldo as to a complaint being made to Mr Morris in this regard.
11. I can safely prefer the evidence of Mr Cataldo and Mr Forster where such evidence conflicts with that of Mr Lusica.
10. I am satisfied that Mr Lusica engaged in a conscious and continuing act of misconduct in relation to the watching of the Movie.
12. I am satisfied that there was no conspiracy to dismiss Mr Lusica.”
[13] It seems to us clear from the above that the Commissioner’s conclusion that there was a valid reason for dismissal for misconduct was based on a combination of the content of the movie viewed, the duration of the viewing and the fact that it was during a busy period at Rosehill, the appellant’s awareness that he should not be watching the movie and that the movie could be viewed and was viewed by a person passing by the control room. The matters identified by the appellant and summarised at [10] above, are matters the Commissioner took into account (and was entitled to so do) in reaching his conclusion that there was a valid reason. Though the matters identified might have weighed in the appellant’s favour, it seems clear from paragraph [62] of the Commissioner’s decision that they did not outweigh the circumstances in which the viewing of the movie occurred. This conclusion was reasonably open to the Commissioner on the material before him.
[14] The appellant also takes issue with the Commissioner’s preference of the evidence of events given by Mr Cataldo and Mr Forster to that of the appellant, and with the Commissioner’s finding that there was no conspiracy to dismiss the appellant, but otherwise did not suggest that any other factual finding was incorrect. The Commissioner had the benefit of observing each of the witnesses while they were giving evidence and had an opportunity to assess their credibility. The appellant provided no explanation as to why the Commissioner’s assessment was wrong. As to the “no conspiracy” finding, the appellant does not point to any evidence led during the proceeding which would suggest that the Commissioner was wrong. In our review of the evidence before the Commissioner, apart from the appellant’s bare assertion, there is no evidence which would support a contrary finding.
[15] After concluding that there was a valid reason for the appellant’s dismissal the Commissioner deals with the other matters that he was required to take into account and it seems clear that in weighing those matters against the existence of a valid reason, the Commissioner was not able to conclude that the appellant’s dismissal was unfair. This conclusion was reasonably open on the material before the Commissioner. We are unable to identify any particular error in the Commissioner’s reasoning or in his application of principle.
[16] The appellant’s real grievance is that he is dissatisfied with the outcome of his unfair dismissal remedy application. Absent any identifiable and significant error in the factual findings or an error in the decision-making process, dissatisfaction with an outcome does not enliven the public interest.
[17] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
PRESIDENT
Appearances:
The Appellant: In person
The Respondent: Ms Brown, Solicitor
Hearing details:
Sydney
19 February 2015
1 [2014] FWC 6600
2 PR555712
3 (2011) 192 FCR 78 at paragraph 43
4 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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
5 (2010) 197 IR 266 at paragraph 27
6 Wan v AIRC [2001] FCA 1803 at [30]
7 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] at the
8 Rushiti v Australian Postal Corporation[2012] FWA 2850; Cronin v Choice Homes (Qld) Pty Ltd[2013] FWC 10240; X v Commonwealth of Australia [2013] FWC 9140 and Toms v Harbour City Ferries Pty Ltd[2014] FWC 2327
9 See Australian Postal Corporation v Rushiti[2012] FWAFB 7423 and Harbour City Ferries v Toms[2014] FWCFB 6249
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