Richard Martin Davey v David Clarke T/A Australian Coastal Flora
[2024] FWCFB 347
•19 AUGUST 2024
| [2024] FWCFB 347 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Richard Martin Davey
v
David Clarke T/A Australian Coastal Flora
(C2024/4793)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 19 AUGUST 2024 |
Appeal against decision [2024] FWC 1666 of Deputy President Anderson at Adelaide on 26 June 2024 in matter number U2024/2523 - permission to appeal refused.
Mr Richard Davey has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Anderson issued on 26 June 2024 (Decision). In the Decision, the Deputy President set out his reasons for being satisfied that Mr Davey’s dismissal by David Clarke t/as Australian Coastal Flora (Australian Coastal Flora) was consistent with the Small Business Fair Dismissal Code (Code) and dismissed Mr Davey’s application for an unfair dismissal remedy.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
The Decision sets out the evidence of the parties and records the Deputy President’s findings of facts in relation to the evidence, including his reasons for preferring one account over the other where there was a conflict in the evidence. In relation to the Code, paragraphs [165] and [175] of the Decision record the Deputy President’s satisfaction as to the existence of a relevant belief on the part of the employer that Mr Davey had engaged in serious misconduct. This was despite concluding that not all conduct alleged against Mr Davey could be either substantiated or characterised as serious misconduct. At paragraph [178], the Deputy President found that the belief held by Australian Coastal Flora was held on reasonable grounds. Accordingly, the Deputy President found the dismissal to have been consistent with the Code and not an unfair dismissal.
This finding was sufficient to dispose of the application. Even so, from paragraph [180] of the Decision, the Deputy President went on to explain why he would not have been satisfied that the dismissal was harsh, unjust or unreasonable by reference to the mandatory considerations in s 387 of the Act.
Grounds of appeal
Mr Davey’s appeal grounds are set out below:
1.Technical non-compliance by Australian Coastal Flora to a Production Order.
2.Overview of evidence given by Ms Jury (Decision at paragraph [18]).
3.Overview of evidence given by Mr Clarke (Decision at paragraph [21]).
4.Overview of evidence given by Mr McMillan (Decision at paragraph [22]).
5.Significant errors in fact (Decision at paragraphs [30] to 132]).
6.Consistent denials by Mr Davey (Decision at paragraphs [134] to 137]).
7.Non-compliance with the Code.
8.Differing accounts given by Ms Jury and Mr McMillan about events.
9.Witness accounts 3-1 that tractor/slasher was not damaged by Mr Davey.
10.Witness accounts 4-0 that the skid steer did not have a critical steering issue until 26th January 2024.
11.Inconclusive evidence produced by Australian Coastal Flora.
12.Inconsistent accounts and interpretations of phone call content.
13.“I am waiting on a FOI form from SA Police with details of report.”
Mr Davey submits that it is in the public interest that permission to appeal be granted because: justice needs to be delivered in cases like his; the public needs to have confidence in government departments; his case was heavily in favour of the employer from the conciliation meetings to the just 2% of unfair dismissal cases successfully resolved in favour of the Applicant at the Commission; that insufficient time was made for his hearing, things were rushed limiting the time for cross-examination and that he felt disadvantaged representing himself.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 has been described as “a stringent one.”[2]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
The grounds of appeal
We do not consider that the grounds of appeal demonstrate any arguable case of appealable error.
As to ground (1), we understand the issue raised by Mr Davey to be that Australian Coastal Flora did not initially comply fully with an order for production issued on the Commission’s own motion on 27 May 2024. Paragraph [8] of the Decision records the failure to produce diary notes of a telephone discussion on 18 January 2024, only discovered in cross-examination. The notes were then produced. The Deputy President found them to be “inconsequential”. After noting that no party sought their admission into the body of evidence, and on the basis that the omission was characterised as technical rather than substantial non‑compliance, the omission was excused by the Deputy President. Other than to say that this was “brushed over without much focus” and that “serious concerns were held for authenticity”, Mr Davey has not elaborated on why the approach taken by the Deputy President gave rise to an arguable case of appealable error. No such error is apparent on the face of the Decision.
Grounds (2), (3), (4) and (11) relate to the Deputy President’s summary and observations of the evidence given in the proceeding at first instance without identifying any arguable error of fact or law. Paragraphs [18], [21] and [22] of the Decision record the Deputy President’s general observations about the quality of evidence given by witnesses for Australian Coastal Flora in the proceeding. Mr Davey disagrees with these observations. Without more, no arguable case of appealable error arises.
Ground 5 alleges “significant errors in fact” in relation to all of the Deputy President’s findings of fact. In this respect, Mr Davey points to who authored certain emails, planning development stages and levels of completion, whether he was given a laptop and dates of correspondence between the parties. It is not apparent how these matters, if factually incorrect, were of significance to the result which largely turned on the Deputy President’s findings about a telephone conversation on 18 January 2024.
Ground 6 points to Mr Davey’s consistent denials of certain matters, as summarised by the Deputy President from paragraphs [134] to [137] of the Decision. The Deputy President was alive to these denials but, for the reasons given earlier in the Decision from paragraphs [15] to [25], preferred the evidence of other witnesses on matters of significance to his ultimate conclusions. There is no material before us to indicate that this approach was not reasonably open to the Deputy President in the circumstances.
Ground 7 of the appeal asserts non-compliance with the Code. This was the very issue for decision in the matter at first instance. The specific provisions of the Code relating to summary dismissal applied and we are satisfied that the Deputy President’s conclusions as to the employer’s belief and the basis on which the belief was held was open to him on the evidence.
Ground 8 of the appeal asserts that “differing accounts” about events were given by Ms Jury and Mr McMillan as described in Mr Davey’s closing submissions at first instance. In similar terms, ground 12 of the appeal asserts “inconsistent accounts and interpretations of phone call content.” As earlier stated, in dealing with an application for permission for appeal it is neither necessary nor appropriate to conduct a detailed examination of the appeal grounds. The Decision records the Deputy President’s approach to dealing with inconsistencies in the evidence (see comments at paragraph [16] above).
The Deputy President’s general observations about the evidence of Ms Jury and Mr McMillan noted (at paragraph [18]) a tendency to generalisation and lack of attention to detail on the part of Ms Jury and found (at paragraph [22]) that Mr McMillan was a witness of credit. Despite his concerns about the evidence given by Ms Jury, the Deputy President was persuaded by her recall of the events of 18 January 2024 as “clear, unshaken in cross examination, consistent with contemporaneous notes and corroborated” (at paragraph [19]). Relevantly, the evidence of Mr McMillan went only to what he heard of a telephone conversation between Ms Jury and Mr Davey on 18 January 2024. At paragraph [80] of the Decision, the Deputy President found Mr Davey’s version of the telephone call “implausible” because it was inconsistent with contemporaneous notes as well as the evidence of Ms Jury and Mr McMillan and Ms Jury’s subsequent conduct. We see no error in the approach taken by the Deputy President to this evidence.
Ground 9 of the appeal asserts that the weight of witness evidence was supportive of a finding that a tractor/slasher was not damaged by Mr Davey. Similarly, ground 10 of the appeal puts the weight of evidence in favour of a finding that a skid steer did not have a critical steering issue until 26 January 2024. There is no finding in the Decision about damage to a tractor/slasher or a critical steering issue affecting the skid steer, likely because such findings were not relevant to the Deputy President’s conclusion that the dismissal was consistent with the Code because of Mr Davey’s conduct on 18 January 2024. No arguable case of appealable error arises.
Finally, ground 13 of the appeal indicates that Mr Davey is waiting on the outcome of a freedom of information request to SA Police about details of a “report”. We infer that this is a police report made by Mr Clarke about a firearm threat alleged to have been made by Mr Davey. The report does not appear to have been before the Deputy President at first instance. It is difficult to see in the circumstances how an appealable error could have been made in relation to the report.
In submissions filed in this application for permission to appeal, Mr Davey also took issue with the number of references in the Decision to his relationship with his long‑term partner (a witness in the proceeding). We accept that multiple references of this kind were made, in varying contexts, but it is not apparent how this gives rise to an arguable case of appealable error in the Decision.
The public interest
We are also not satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The arguments put by Mr Davey in this regard are best understood as reflecting Mr Davey’s disagreement with the outcome of the proceeding. No application in relation to actual or apprehended bias was made before the Deputy President at first instance, and nor is there any evidence to support the submission. It is well established that each case depends on its own facts and circumstances and a bare assertion about success rates for applications of this kind is not a sufficient basis to attract the public interest.
Mr Davey further submits that insufficient time was made for his hearing; that things were rushed, limiting the time for cross-examination and closing submissions; and that he felt disadvantaged representing himself. Paragraph [10] of the Decision indicates that the hearing was held over 3 days in June 2024. For a hearing involving 6 witnesses (and 1 additional witness who was not required for cross-examination), this does not appear to us to have been an unreasonably short timeframe. Many unfair dismissal cases are heard in a single day. At any time, it was open to Mr Davey to seek to be represented in the proceeding. These are not matters that properly engage the public interest.
For these reasons, the appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr Davey on his own behalf.
Mr Holland of Sparke Helmore Lawyers for the Respondent.
Hearing details:
12:00 pm (AEST) / 11:30 am ACST on Tuesday, 6 August 2024 by video using Microsoft Teams.
[1] [2024] FWC 1666.
[2] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43].
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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].
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
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