Richard Giordano v Linfox Australia Pty Ltd
[2018] FWCFB 1731
•26 MARCH 2018
| [2018] FWCFB 1731 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Richard Giordano
v
Linfox Australia Pty Ltd
(C2018/187)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2017] FWC 6937 of Deputy President Millhouse at Melbourne on 22 December 2017 in matter number.
Introduction
[1] This is an edited version of a decision which was issued ex tempore on 23 March 2018.
[2] Mr Richard Giordano has appealed a decision of Deputy President Millhouse issued on 22 December 2017 1 (Decision). The Decision was made pursuant to section 739 of the Fair Work Act 2009 (FW Act) in the exercise of dispute arbitration powers conferred upon the Commission by clause 33 of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 (Agreement), and concerned an internal application by Mr Giordano, as an employee of Linfox Australia Pty Ltd (Linfox) for a position with Linfox as a Fuel Tanker Driver. Mr Giordano’s application was unsuccessful. He contended that in rejecting his application, Linfox had failed to comply with clause 68 of the Agreement. Clause 68 provides:
“68. Preference for Internal Recruitment
68.1 Linfox must ensure that Employees have a reasonable opportunity to be aware of, and to apply for, any promotional position or positions of interest at other Linfox sites for which there is a vacancy.
68.2 Linfox may advertise the vacancy and seek applicants from outside Linfox.
68.3 All things being equal, Linfox will prefer Employee candidates for the internal vacancies.”
[3] The effect of the Decision was to determine that Linfox did comply with clause 68.3 of the Agreement when it rejected Mr Giordano’s application for a position as a Fuel Tanker Driver in June 2016. The Deputy President found that there was no obligation upon Linfox under the Agreement to prefer Mr Giordano for the internal vacancy of Fuel Tanker Driver to which he had applied, because the pre-condition in clause 68.3, “All things being equal”, was not satisfied.
[4] Mr Giordano contends in this appeal that the Deputy President erred in the application of clause 68 of the Agreement based on the evidence before her, and consequently that the Decision should be quashed.
The Decision
[5] There was no dispute before the Deputy President as to the proper construction of clauses 68.1 and 68.2, and the Deputy President was satisfied that the Commission had jurisdiction to deal with the dispute under clause 33, including by arbitration. The Deputy President identified the issue to be determined as being whether Linfox complied with clause 68.3 of the agreement when it rejected Mr Giordano’s application for a position as a Fuel Tanker Driver in June 2016. The resolution of the dispute, therefore, turned in part on the proper construction of clause 68.3.
[6] It was not in dispute that:
● Mr Giordano applied for the position of Fuel Tanker Driver on 12 May 2016;
● The position was based at Linfox’s site at Altona; and
● At the time of this job application, Mr Giordano had no Fuel Tanker Driver experience.
[7] The evidence before the Deputy President included the process set by Linfox management when recruiting for the position of Fuel Tanker Driver, which included an 11 step recruitment process. This process is set out in the Decision in full and not repeated here. 2 It is sufficient to say that at step 10, once the candidate had passed a medical and a police check, a reference check is conducted. At step 11, the candidate is issued with a letter of offer if Linfox is satisfied with the reference check.
[8] The evidence before the Deputy President was that it was Linfox’s standard policy, with respect to internal candidates, to conduct an internal reference check through the candidate’s “initial manager” first. 3 Thus Mr Giordano’s line manager, Mr Gillon, was the first person contacted for the reference check step (rather than the person nominated by Mr Giordano as his referee in his application). It was reported that Mr Giordano had been involved in three “reversing incidents” whilst driving Linfox vehicles. This unsatisfactory reference check caused his application not to be progressed any further.4
[9] Mr Giordano contended before the Deputy President that:
● the only reason he did not get the Fuel Tanker Driver position in June 2016 was because he failed the reference check at step 10;
● Linfox could have obtained a reference from someone other than Mr Giordano’s line manager because they did not get along very well;
● Linfox could have called Mr Giordano’s nominated referee, but did not;
● the 3 driving incidents were minor incidents;
● he had passed the other steps in the process, including the driving assessment at step 7;
● external recruits were not subject to the same policies as internal recruits, which put him at a disadvantage; and
● he was equal to external candidates. 5
[10] As a result, Mr Giordano contended that Linfox did not comply with clause 68.3 of the Agreement as it did not treat him fairly and equally.
[11] In the Decision, the Deputy President interpreted clause 68.3 as requiring Linfox to analyse all applications received by it for a particular vacancy, both internal and external. If Linfox’s comparative assessments of all applications resulted in a position where the circumstances of an internal applicant and an external applicant were the same, then Linfox was required to prefer the internal candidate for the position over the external candidate. 6
[12] In the Decision, the Deputy President stated the following conclusions concerning Linfox’s application of clause 68.3:
● Clause 68.3 did not establish a test of fairness.
● There was nothing in the language or structure of clause 68.3 that constrained the approach that Linfox might choose to adopt in its recruitment process.
● Linfox was therefore not prevented from observing its policy by obtaining a reference from Mr Gillon rather than Mr Giordano’s preferred referee or from determining his application on the basis of the reference provided by Mr Gillon.
● It was clear on the evidence that Mr Giordano did not pass his reference check on account of the three reversing incidents. There were three external candidates who did pass the step of a successful reference check.
● Linfox was entitled to conclude that all things were not equal as between Mr Giordano and the three external applicants.
● Linfox was therefore not required to prefer Mr Giordano over the external applicants. 7
Appeal grounds and submissions
[13] In his notice of appeal, Mr Giordano stated that he was “appealing the decision that all things were not equal between myself and other candidates during the recruitment process of June 2016, resulting in my job application not being successful”. Mr Giordano, being self-represented, did not with absolute precision identify his grounds of appeal. However we construe his notice of appeal as contending that the Deputy President erred:
● in finding that “all things were not equal”, due to the recruitment process being unfair (grounds 1, 2, 3 and 6);
● by making mistakes of fact (ground 4);
● in not finding that clause 68.3 works against internal candidates (ground 5); and
● in not placing enough emphasis on the word “all” in clause 68.3, which was unjust (ground 7).
[14] In his oral submissions, Mr Giordano disavowed the proposition that there was any challenge, in respect of Linfox’s compliance with clause 68.3, to Linfox’s initial use of Mr Gillon for the reference check as compared to his nominated referee. Mr Giordano’s oral submissions, as well as the written material attached to his notice of appeal, focused upon the merits of the three “reversing incidents” identified in the reference check which caused his application not to succeed. Mr Giordano contended that he was not at fault in any of these incidents, that Linfox should have made inquiries with respect to the incidents, and that the Deputy President erred by not considering the incidents and not finding that he was not at fault.
Applicable appeal principles
[15] Clause 33.1(1)(f)(i) of the Agreement relevantly provides that an arbitral decision of the Commission made pursuant to the disputes procedures is binding on the parties subject to a “right of appeal to a Full Bench of FWC against the decision”. Because this provision provides for an unqualified right of appeal, there is no requirement for Mr Giordano to first obtain permission to appeal. 8 Clause 33.1(1)(f)(ii) provides that “The appeal will be conducted in accordance with the legal principles applying to an appeal”. Therefore the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.9
Consideration
[16] Mr Giordano’s appeal did not challenge the Deputy President’s interpretation of clause 68.3 as set out paragraph [11] above. Nor did he challenge the Deputy President’s conclusion that Linfox was not constrained by clause 68.3 from selecting, at least at the first instance, its own internal referee for the purpose of steps 10 and 11 of the selection process rather than the referee nominated in Mr Giordano’s application. Therefore the appeal does not require us to consider whether the stipulation in clause 68.3 for Linfox to prefer internal applicants when all things are equal meant that Linfox had to treat candidates for positions, both internal and external, equally by conducting reference checks with only the candidate’s nominated referee (as Linfox did with external candidates).
[17] The essential issue raised by Mr Giordano concerned the alleged failure of the Deputy President to find that he was not at fault in the three “reversing incidents”, and therefore that he should not have failed the reference check stages. However we do not consider that there was an error on the part of the Deputy President in this respect. Assuming in Mr Giordano’s favour, without determining, that clause 68.3 required Linfox to treat internal and external applicants equally in the conduct of the selection procedure in order for it to properly determine whether all things were equal in a given case, there was no evidence that Mr Giordano was treated differently from any external candidate for a Fuel Tanker Driver position in respect of the reference check outcomes. It is not normally the case that employers “go behind” a reference that is given and conduct an investigation as to whether any negative matters that are raised have substance, and there was no evidence that this was done by Linfox in respect of any candidate, internal or external. The procedure simply required the applicant to pass a reference check. There were adverse matters raised in Mr Giordano’s reference check that were not raised in respect of the references for external candidates, and that was sufficient (as the Deputy President found) to render things as not being equal such as to disentitle Mr Giordano from preference under clause 68.3. The Deputy President was not required to conduct an inquiry into, and make findings about, the three “reversing incidents” in order to reach the conclusion that Linfox had complied with clause 68.3. The conclusion which was reached was reasonably available to the Deputy President on the evidence before her.
[18] Mr Giordano has not demonstrated that the Decision was attended by appealable error in any other respect. Accordingly, his appeal is dismissed.
VICE PRESIDENT
Appearances:
R. Giordano on his own behalf
G. Katsifolis for Linfox Australia Pty Ltd
Hearing details:
Sydney.
23 March:
2018.
<PR601440>
1 [2017] FWC 6937
2 Decision at [26]
3 Decision at [29]
4 Decision at [29]-[33]
5 Decision at [36]
6 Decision at [47]-[48]
7 Decision at [51]-[54]
8 Australian Manufacturing Workers’ Union v Silcar Pty Ltd [2011] FWAFB 2555, (2011) 208 IR 33 at [26]-[28]; Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited[2013] FWCFB 2814, (2013) 232 IR 255 at [22]; McWhirter v Endeavour Energy[2017] FWCFB 5955 at [22]-[23]
9 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
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