Rosauro Gapuzan v Rio Tinto Aluminium Limited
[2024] FWCFB 267
•24 MAY 2024
| [2024] FWCFB 267 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rosauro Gapuzan
v
Rio Tinto Aluminium Limited
(C2024/2001)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 24 MAY 2024 |
Appeal against decision of Commissioner Simpson ([2024] FWC 695) at Brisbane on 18 March 2024 in matter C2024/645 – permission to appeal refused.
Rosauro Gapuzan has lodged an appeal, for which permission is required, against a decision of Commissioner Simpson made on 18 March 2024 in which the Commissioner concluded that Mr Gapuzan had not been dismissed by Rio Tinto Aluminium Limited (company), and on this basis upheld the company’s objection to his application under s 365 of the Fair Work Act 2009 (FW Act). Mr Gapuzan contends that the decision is erroneous and that the Commissioner ought to have concluded that the company’s refusal to grant his request for annual leave forced him to resign and gave rise to a dismissal within the meaning of s 386(1)(b) of the FW Act. The parties consented to the appeal being conducted without a hearing and filed written submissions on both permission to appeal and the merits of the appeal. The appellant objected to the company being granted permission to be represented in the appeal, but a party does not require permission for a lawyer to prepare and file written submissions on its behalf.
The background may be summarised as follows. On 19 September 2023, Mr Gapuzan commenced employment at the company’s mine in Gove. On 15 November 2023, he applied to take annual leave from 27 to 29 December 2023. This was refused. On 30 November 2023, Mr Gapuzan made a second leave application in the same terms. This too was refused. On 14 December 2023, he sent a message to management explaining that his purpose in requesting annual leave was to attend medical appointments in Perth for diabetes, hypertension and a recurring cough. On 18 December 2023, Mr Gapuzan met with the superintendent, Mr Richter, who confirmed that his leave request had been declined for operational reasons. Shortly afterwards, Mr Gapuzan sent an email to Mr Richter stating that he resigned. He thanked the company for the opportunity to work for it and apologised for certain mistakes, but said that he was not able to continue to work under management that did not care about health, safety and well-being. The next day, Mr Richter replied, stating that the company accepted the resignation, and that Mr Gapuzan’s last day of work would be 17 January 2024. On 20 December 2023, Mr Gapuzan and Mr Richter had a conversation about relocation costs. Mr Gapuzan’s evidence before the Commissioner was that during this discussion he sought to withdraw his resignation. Mr Richter denied this. Mr Gapuzan proceeded with his trip to Perth and Mr Richter did not object. He was absent from work from 27 to 29 December 2023 and returned on 2 January 2024. On 4 January 2024, Mr Gapuzan sent an email to Mr Richter stating that he withdrew his resignation. He said that at the time he resigned, he had been too distressed and unwell to think rationally. Mr Richter did not respond to the email. Mr Gapuzan worked until 17 January 2024, when his employment ended.
Before the Commissioner, Mr Gapuzan submitted that he was forced to resign because of his distress and his concerns for his medical safety. He relied on the Full Bench decision in Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 (Bupa) and contended that a resignation that occurs when a worker is very stressed is not effective. He said that he was in ‘extreme distress’ before the meeting on 18 December 2023. He compared his case to the facts in Rutter v Anglogold Ashanti Australia Limited[2023] FWC 1891 (Rutter), where a worker who resigned in distress and later retracted her resignation was found to have been dismissed. Mr Gapuzan contended that the company had ignored his health and wellbeing and forced him to resign by denying him the opportunity to attend a medical examination.
The company contended that Mr Gapuzan had shown no sign of distress in the meeting on 18 December 2023 or in his resignation message later that day. It said that there were no special circumstances in this case, that Mr Gapuzan had resigned of his own free will, that it had not dismissed him, and that consequently the Commission had no power to deal with his application under s 365 of the FW Act.
In his decision, the Commissioner stated that he could see no reason why the company ought to have asked Mr Gapuzan to clarify his resignation message (at [54]). He accepted Mr Richter’s evidence that Mr Gapuzan had not made any efforts to withdraw his resignation prior to 4 January 2024, and noted that his message of that day did not refer to any such previous efforts. He said that Mr Gapuzan’s failure to withdraw his resignation over a two week period supported a conclusion that the resignation was voluntary (at [54]). The Commissioner accepted Mr Richter’s evidence that Mr Gapuzan did not appear distressed in the meeting on 18 December 2023, and that there were no heated exchanges. He noted that Mr Gapuzan had acknowledged that there was no medical emergency (at [56]). The Commissioner concluded that it was not unreasonable of the company to have denied Mr Gapuzan’s request to take annual leave (at [67], [68]). He was satisfied that Mr Richter did not refuse the request with an intention to bring the employment to an end and accepted that Mr Richter had told Mr Gapuzan that he could take leave if there was a medical emergency (at [69]). The Commissioner concluded that Mr Gapuzan’s resignation was voluntary (at [69]) and that he had not been dismissed (at [70]).
Consideration
Mr Gapuzan’s notice of appeal advanced six grounds of appeal. Ground 1 contended that the Commissioner’s decision was not consistent with other decisions of the Commission and that he had offended the principle of stare decisis. This is misconceived. The doctrine of precedent applies in courts. The Commission is an administrative tribunal. But in any event, the Commissioner’s decision is consistent with the Full Bench decision in Bupa. The other decisions to which Mr Gapuzan referred are distinguishable from his case. Mr Gapuzan also contended by ground 1 that he was forced to resign because the company’s decision to refuse his annual leave request prevented him from attending regular check-ups for his diabetes. The Commissioner did not accept this and neither do we. Mr Gapuzan was not prevented from having check-ups. He could have seen a doctor in Gove or a doctor of his choice in Perth at a convenient time. Further, the Commissioner found that had there been an emergency, Mr Richter would have granted leave. But there was no emergency. Mr Gapuzan acknowledged this.
The second ground of appeal contended that the Commissioner committed an error of law by misinterpreting s 386(1). Mr Gapuzan did not explain what this misinterpretation was said to be. It is clear from the Commissioner’s decision that there was none. Mr Gapuzan also contended that the Commissioner erred by focusing on whether he had resigned in distress while ignoring his argument that the company’s rejection of his leave request was adverse action and contrary to state safety laws. There was no error here. The Commissioner was correct to focus on s 386, because this section defines when a person has been dismissed. The Commissioner did not ignore Mr Gapuzan’s argument that he had been forced to resign because of the refusal of leave; he considered the argument and rejected it. Not only was it open to the Commissioner to reject this argument, he was plainly correct to do so.
Ground 3 alleged that the Commissioner had ignored important facts and information. Mr Gapuzan asserted that the Commissioner was obliged to consider medical evidence and make findings about his medical condition. The cases referred to in Mr Gapuzan’s submissions concerned disputed medical evidence about whether employees were fit for work. In this case, Mr Gapuzan’s medical condition was not in dispute. Mr Gapuzan appears to believe that the Commissioner should have undertaken a factual inquiry into the seriousness of his condition. This is wrong. It is up to the parties to put their evidence before the Commission, not for the Commission to go looking for evidence.
In his fourth ground of appeal, Mr Gapuzan contended that the Commissioner had denied him procedural fairness because he allowed the company to be represented by a lawyer pursuant to s 596 of the Act, whereas he had no legal representation, despite being a migrant who lacks proficiency in English and is hard of hearing. In our assessment, there is no indication at all that the Commissioner’s decision to grant permission to the company to be represented had the practical effect of denying Mr Gapuzan a fair hearing. There is nothing in the materials before us to suggest that anything occurred during the proceeding that was inconsistent with the principles of procedural fairness. Mr Gapuzan had every reasonable opportunity to present his case. He received a fair hearing before an impartial decision-maker.
The fifth appeal ground asserted that the decision was affected by legal error because it focused on s 386 rather than the company’s alleged contraventions of various provisions of the FW Act, such as ss 340, 345 and 351. Mr Gapuzan is under the mistaken impression that the Commissioner’s task was to determine whether the company had contravened the general protections provisions in the FW Act. The Commissioner had no power to do this. The only question for the Commissioner to determine was whether Mr Gapuzan had been dismissed.
The sixth ground of appeal asserted that the Commissioner’s decision had manifested an injustice. We disagree. There is nothing unjust about the decision. In our view, it is clear that Mr Gapuzan was not forced to resign. The company’s decision to refuse his request for annual leave did not compel his resignation, nor were there any other circumstances of compulsion in this matter. Mr Gapuzan resigned of his own free will. He was plainly not dismissed.
Having examined the appeal grounds, we find them to be without substance. There is no basis to grant permission to appeal, whether in the public interest or otherwise. Permission to appeal is refused.
DEPUTY PRESIDENT
Determined on the papers
Date of final written submissions: 21 May 2024
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