Robert Price v Police Department (Vic)
[2024] FWCFB 435
•19 NOVEMBER 2024
| [2024] FWCFB 435 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Robert Price
v
Police Department (Vic)
(C2024/6760)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 19 NOVEMBER 2024 |
Appeal against decision [2024] FWC 2484 of Commissioner Yilmaz at Melbourne on 13 September 2024 in matter number U2024/106 – permission to appeal refused.
Mr Robert Price has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision of Commissioner Yilmaz issued on 13 September 2024. In the decision, the Commissioner dismissed Mr Price’s application for an unfair dismissal remedy under s 394 of the Act as she was not satisfied that Mr Price’s dismissal from his employment with the respondent, Police Department (Vic), was harsh, unjust or unreasonable.
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 relevantly records that Mr Price was employed as a Senior Police Custody Officer. Following a suspension from duties in or about August 2021 and a substantiated complaint, Mr Price commenced a period of personal leave and was demoted to Police Custody Officer in January 2022. Mr Price remained on leave following the acceptance of a WorkCover claim in or about March 2022.
From June 2023, the respondent commenced a process to assess Mr Price’s capacity to perform the inherent requirements of his role. An independent medical report from a Psychiatrist, Dr Scott Hall, stated that Mr Price was unable to fulfil the duties of his role for a period of six months, and in the longer term (nine to 12 months) a gradual return may be possible but conditional upon Mr Price undertaking intensive therapy, a trial of appropriate medication and avoiding the harmful use of alcohol. Dr Hall concluded that based on his assessment, Mr Price was unwilling to acknowledge that there were steps he could take to improve his situation, leading Dr Hall to conclude that it was his opinion that Mr Price was unable to return to work. Further, Dr Hall opined that there is a significant likelihood that if Mr Price returned to the role, his mental health would deteriorate.
In the show cause process that followed, Mr Price did not produce any additional medical information regarding his capacity to return to work in the foreseeable future. Accordingly, the respondent dismissed Mr Price from his employment.
Grounds of appeal and public interest
In his Notice of Appeal under the heading, “What are the grounds for your appeal?” Mr Price states as follows:
“Under s 351(1) of the Fair Work Act 2009 an employer must not take adverse action against an employee because of physical or mental disability and evidence submitted by me shows that VICPOL failed to provide a safe work environment causing my mental disability then declined all mediation meetings suggested by me, instead focussing on how to terminate my employment through various unethical tactics.
Decision [2] fails to take into account that the original RTW plan was deemed unsafe and without offering an alternative, instead withholding information surorunding [sic] IMC O’Brien and engaging IPAR services without discussions with me.
My GP & Psychologist agreed that without some form of mediation meetings the medical certificates would always be marked with a total incapacity to resume duties in the unsafe/toxic environment that Victoria Police expected me to.”
Mr Price annexed an additional page to Notice of Appeal which we regard to be an extension of his grounds of appeal. In this document:
(a)Mr Price raises concerns with the content of an Issue Cover Sheet (ICS), being a brief of information and relevant documents prepared by the respondent in respect of an employee going through an “inherent requirements” process at the workplace.[1] Mr Price identifies concerns with a series of “points” in the respondent’s ICS.[2] Mr Price also submits that the respondent’s Acting Director, Business Partnering and Workplace Relations Division, Human Resources Command, Ms Yool, should not have been called by the respondent as a witness in the proceedings;
(b)Mr Price raises concerns with the witness statement tendered in the proceeding by Dr Hall.[3] Mr Price submits that Dr Hall does not acknowledge the steps taken to address his health concerns, or Mr Price’s failed efforts to schedule a mediation with the respondent. Mr Price says that Dr Hall’s statement is directed to Mr Price’s “issues” with the respondent and does not address how the respondent should take steps to stop the risk of further bullying and harassment at the workplace. Mr Price also poses a series of questions which we understand to be directed towards Dr Hall’s credibility to give independent evidence in the proceeding; and
(c)Mr Price submits that the decision does not acknowledge the possibility of the respondent writing statements that are “full of lies” to suit its own narrative, and ought to have included statements from “major decision makers as I asked but was denied, these included M. Pascoe, M. Young & J. Coyne.”
Mr Price submits, in summary, that it is in the public interest to grant permission to appeal because there is a public interest in highlighting the respondent’s treatment of citizens during COVID-19 lockdowns and false statements given to shield negligence. Mr Price also says that false evidence was given by the respondent in his case.
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 is “a stringent one.”[4]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error or a preference for a different result.[6] 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.[7]
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.[8] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
We are not satisfied that the grant of permission to appeal would be in the public interest, for the following reasons.
At the outset, we record that Mr Price has not challenged the Commissioner’s factual findings which informed her conclusion that the respondent had a valid reason for the dismissal,[9] and that the dismissal was effected in a procedurally fair manner.[10] In making these findings, the Commissioner considered a report produced by Mr Price’s treating psychologist after his dismissal had been effected, and concluded that this report does not challenge the medical evidence upon which the respondent relied when it determined that Mr Price was not likely to return to work in the foreseeable future.[11] In the absence of any challenge to these conclusions, the application for permission to appeal does not appear to be capable of succeeding.
It is apparent from the material before us that at the heart of Mr Price’s appeal is his contention that the respondent failed to participate in mediation meetings with him prior to the dismissal, in order to secure his safe return to work. This argument was advanced by Mr Price at first instance.[12] The Commissioner considered the issue and noted that Dr Hall’s evidence was that mediation may assist to “tackle the conflict Mr Price perceived.” However, this was subject to Mr Price engaging with the identified conditions upon a return to work involving intense therapy and taking personal steps to improve his situation,[13] which, as earlier stated, the evidence records that Mr Price was unwilling to acknowledge. The Commissioner concluded that the valid reason she had found for Mr Price’s dismissal was not outweighed by his concern that the respondent had not genuinely engaged in a return-to-work process. There appears to be a clear evidentiary basis for the Commissioner’s conclusion, noting Dr Hall’s evidence that Mr Price’s fixation on the “secretive and abusive” conduct by the respondent was such that “it was evident in his communication that [Mr Price] has no confidence in his employer to remedy his persecution. These views are likely to have mitigated the success of any such mediation discussions.”[14] Accordingly, we are not persuaded that this matter gives rise to an arguable case of appealable error.
To the extent that Mr Price seeks to challenge the Commissioner’s decision to decline his application for an order compelling the attendance of certain persons at the hearing, we note that the Form F51 application filed by Mr Price concerns Mr Pascoe and Ms Young only (and does not extend to J. Coyne, a person also identified in Mr Price’s submissions).[15] For reasons given during a case management conference, the Commissioner declined the application as she was not satisfied that the evidence sought to be led by these persons had any apparent relevance to the issues to be determined. The Commissioner dealt with the Form F51 application in an orthodox manner and the conclusion reached was readily available having regard to the content of the Form F51 application and the questions Mr Price proposed to put to those persons at the hearing. No arguable case of error arises.
We are not otherwise satisfied that the balance of Mr Price’s grounds of appeal disclose an arguable error. Mr Price’s contention as to a breach of s 351(1) of the Act does not arise for consideration in the context of Mr Price’s application for an unfair dismissal remedy, where s 351(1) is not a relevant statutory consideration. Paragraph [2] of the decision comprises a summary of the background of Mr Price’s dismissal and does not constitute the Commissioner’s dispositive reasoning in the matter, nor disclose error in any event. Mr Price’s concerns as to the respondent’s internal ICS documents, and Dr Hall’s evidence and credibility, does not challenge any aspect of the decision or the Commissioner’s findings. The contention that the respondent should have called other witnesses is not a matter which can be addressed by an application for appellate review.
Notwithstanding Mr Price’s contention that there is public interest in granting permission to appeal, we are not satisfied that the appeal raises any issue of law or principle that might have a wider application, or that the decision manifests an injustice. Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the Act.
Order and disposition
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
[1] See first instance Digital Court Book 208 at [11]
[2] Points 5, 8, 9, 11-17, 18, 19, 20, 21, 23h and 23i
[3] Points 14 and 15-16
[4] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[5] 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]
[6] 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]
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[9] Decision at [33]
[10] Decision at [34]-[40]
[11] Decision at [31]
[12] Decision at [13] and [15]
[13] Decision at [25], [30]
[14] See first instance Digital Court Book 280 at [15a]
[15] Form F51 application for an order requiring a person to attend before the Commission dated 10 June 2024 at [1.1]
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