Ross Kennedy v Qantas Ground Services Pty Ltd
[2019] FWCFB 2151
•4 APRIL 2019
| [2019] FWCFB 2151 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ross Kennedy
v
Qantas Ground Services Pty Ltd
(C2019/1418)
VICE PRESIDENT HATCHER | SYDNEY, 4 APRIL 2019 |
Appeal against decision [2019] FWC 837 of Deputy President Kovacic at Canberra on 13 February 2019 in matter number U2017/11691.
Introduction
[1] Mr Ross Kennedy has applied for permission to appeal against a decision of Deputy President Kovacic issued on 13 January 2019 1 (Decision). The Decision concerned two preliminary questions of fact which were said to arise in Mr Kennedy’s application for an unfair dismissal remedy against Qantas Ground Services Pty Ltd (QGS) pursuant to s 394 of the Fair Work Act 2009 (FW Act). The questions, which were in terms agreed between the parties, were as follows:
1. Did Dr Walker conclude that Mr Kennedy had or had not been bullied at work whilst employed by Qantas Ground Services in Canberra or alternatively did Dr Walker not form a view on that question?
2. If Dr Walker concluded that Mr Kennedy had or had not been bullied at work, on what basis did Dr Walker come to that conclusion?
[2] The Deputy President answered “No” to the first question, and on that basis found it was not necessary to answer the second question. Mr Kennedy contends that the Deputy President’s answers to the questions were in error.
[3] The questions arose for consideration in the following way. Mr Kennedy commenced employment with QGS as a ground crew member at Canberra Airport on 13 March 2013. On 31 May 2016 Mr Kennedy went off work because of mental health issues after complaints had been made about his performance and he had complained of bullying and harassment by supervisors. On 2 June 2016 Mr Kennedy made an application to this Commission for an order to stop bullying at work pursuant to s 789FC of the FW Act. He made a claim for workers’ compensation and appears to have received workers’ compensation payments until approximately 15 December 2016, at which time liability was denied. QGS arranged for an external provider to conduct an investigation into Mr Kennedy’s claims of workplace bullying, but there is a dispute about the independence of the investigation and its outcome.
[4] On 16 December 2016 QGS wrote to Mr Kennedy to advise that it required him to attend a medical examination with Dr Kipling Walker, a Forensic Psychiatrist. It is apparent that QGS provided Dr Walker with considerable background information and documents concerning Mr Kennedy’s personal and medical history for the purpose of the examination. Mr Kennedy attended for the examination with Dr Walker on 1 February 2017.
[5] Dr Walker prepared a “Fitness for Work Assessment and Report” (Report) concerning Mr Kennedy dated 27 March 2017. The Report concluded that Mr Kennedy was unfit now and in the future for work for QGS. The Report summarised a number of matters concerning Mr Kennedy’s personal, employment and litigation history as well as his “History of Presenting Complaints”. It is not necessary for present purposes to set out Dr Walker’s diagnosis of Mr Kennedy’s condition except to note that the Report included the following conclusion:
“Mr Kennedy is permanently unfit for any role with Qantas. Given his history of perceived mistreatment at different workplaces, and his assessment of a ‘high risk’ of being bullied at Qantas, he is likely to feel bullied and/or harassed in any role at Qantas. As has occurred previously, perceived bullying and/or harassment will precipitate another episode of depression.”
[6] Arising from the Report, on 27 September 2017 QGS issued Mr Kennedy with a “show cause” letter concerning the continuation of his employment. On 2 November 2017 QGS dismissed Mr Kennedy on the ground that he had “no capacity, and will not have capacity in the foreseeable future, to safely perform the inherent requirements of any role with the Company”. Mr Kennedy filed his unfair dismissal remedy application the following day.
[7] Mr Kennedy’s application has been the subject of a number of interlocutory decisions. The Decision records that on 17 October 2018 Mr Kennedy requested that the Commission conduct a determinative conference in respect of “disputed facts” in order to “permit a quicker and more efficient Hearing on the substantive matter”. How this purpose might have been achieved by taking this course is not apparent to us. At a hearing conducted on 25 October 2018, agreement was reached between Mr Kennedy and QGS that the requested determinative conference should be conducted for the purpose of having the Commission answer the questions set out in paragraph [1] above. The determinative conference took place on 23 November 2018. Dr Walker attended the conference for the purpose of giving evidence and was cross-examined by Mr Kennedy. The parties were permitted to subsequently file written submissions.
The Decision
[8] In the Decision the Deputy President summarised the evidence given by Dr Walker at the conference as follows (footnotes omitted):
“[10]Dr Walker’s viva voca evidence can be summarised as follows:
• he did not form a view as to whether or not Mr Kennedy had actually been bullied and/or harassed while working for QGS;
• even if he were to assume that Mr Kennedy had been bullied it would not have caused him to review or change his diagnosis or the conclusions in his report;
• he certainly noted in his report that Mr Kennedy perceived that he had been bullied;
• the reference to “perceived” was a subjective comment in which he acknowledged that Mr Kennedy perceived that he had been mistreated at a range of workplaces over decades but without making a judgement on whether or not that had occurred;
• it was beyond his area of expertise to comment on whether someone had actually been bullied or harassed at work, later adding that that there were commissions and tribunals to make that determination;
• with regard to that aspect of his report which stated “…[i]n several different workplaces, he [Mr Kennedy] has been bullied and harassed for a number of reasons” he considered that putting the statement under the heading ‘History from Mr Kennedy’ demonstrated that he was reporting what Mr Kennedy had put to him, disputing that he made a conclusion to the effect that Mr Kennedy had been bullied and harassed but acknowledging that it may have been clearer had he said that Mr Kennedy perceived that he had been bullied and harassed.”
[9] In his consideration of the questions posed for determination, the Deputy President commenced by setting out certain passages in the Report as supportive of Dr Walker’s conclusion that he did not express any opinion as to whether Mr Kennedy had actually been the victim of bullying (footnotes omitted):
“[18] Dr Walker’s evidence that he did not form a view as to whether or not Mr Kennedy had actually been bullied and/or harassed while working for QGS is supported by an examination of his report regarding Mr Kennedy. Specifically, Dr Walker’s report includes the statements set out below:
• under the heading ‘Sources of information’ in which Dr Walker refers to the material he has read regarding Mr Kennedy:
“Your [the Respondent’s] request from 12 January 2017 … He complained of bullying and harassment from … On 2.6.16, he applied to the Fair Work Commission (FWC) ‘for an order to stop bullying against 13 employees’. An independent investigation did not substantiate his allegations …” (underlining added);
• as previously mentioned in the section headed ‘History from Mr Kennedy’ under the subheading ‘History of Presenting Complaints’:
“In several different workplaces, he has been bullied and harassed for a number of reasons”;
• a section which deals with Dr Walker’s examination which includes the following:
“Mr Kennedy said … there was a high risk he would be bullied again …” (underlining added);
• in the section headed “Summary and Opinion”:
“Given his history of perceived mistreatment at different workplaces and his assessment of a “high risk” of being bullied at Qantas, he is likely to feel bullied and/or harassed in any role at Qantas. As has occurred previously, perceived bullying and/or harassment will precipitate another episode of …” (underlining added)
…
“… He expects to be bullied on returning to work …” (underlining added).”
[10] The Deputy President then concluded:
“[19] With the exception of the extract at second dot point above, the underlined text in the above extracts from Dr Walker’s report point to Dr Walker reflecting what Mr Kennedy had put to him. As to the second dot point above, while it implies that Dr Walker had formed a view that Mr Kennedy had been bullied and harassed, as noted above Dr Walker disputed this in his evidence, attesting that putting the statement under the heading ‘History from Mr Kennedy’ demonstrated that he was reporting what Mr Kennedy had put to him. I accept Dr Walker’s evidence in this regard.
[20] I would also note that Dr Walker’s evidence at the determinative conference was consistent throughout and gave no reason for the Commission to question either its veracity or reliability.
[21] Having regard to Dr Walker’s evidence and his Fitness for Work Assessment and Report regarding Mr Kennedy supports a finding that Dr Walker did not form a view on whether Mr Kennedy had or had not been bullied at work whilst employed by QGS.
[22] As previously mentioned, in his email of 13 December 2018 Mr Kennedy contended that Dr Walker concluded that he [Mr Kennedy] perceived that he was bullied at the QGS Canberra workplace and that he would perceive that he was being bullied at the QGS Canberra workplace in any return to the workplace. Such a finding is entirely consistent with Dr Walker’s evidence. However, such a finding does not equate to a finding that Dr Walker concluded that Mr Kennedy was bullied at work whilst employed by QGS. In my view, it is nothing more than an acknowledgement by Dr Walker that Mr Kennedy believes that he was bullied at work whilst employed by QGS. The conclusion sought by Mr Kennedy does not alter the finding at paragraph [21] above that Dr Walker did not form a view on whether Mr Kennedy had or had not been bullied at work whilst employed by QGS.”
[11] The Deputy President then dealt with some submissions made by Mr Kennedy concerning an alleged denial of procedural fairness which are not presently relevant. The Deputy President then gave the answers to the two questions to which we have referred in paragraph [2] above, and concluded the Decision with the following:
“Next steps
[26] Mr Kennedy’s unfair dismissal application and his application for various persons to be required to attend will now be listed for a mention and directions hearing to agree on a revised timetable for the provision of submissions and evidentiary material and hearing of those applications.
[27] I would observe that the answer to Question 1 above raises doubts as to the relevance of evidentiary material relating to the question of whether or not Mr Kennedy was bullied whilst working at QGS Canberra and whether that material should be admitted. I anticipate those issues will be further traversed at the abovementioned mentions and directions hearing.”
Grounds of appeal and submissions
[12] Mr Kennedy’s grounds of appeal in his amended notice of appeal were as follows:
“That DP Kovacic has;
1. mistaken the facts in the exercise of his discretion and his Decision is inherently counter-intuitive;
2. failed to take into consideration relevant factors;
3. taken irrelevant matters into consideration; and
4. arrived at a manifestly wrong, illogical and unreasonable decision; and
5. made a Decision that is not consistent with Application by Ms SB [2014] FWC 2104 (12 May 2014).”
[13] Mr Kennedy’s notice of appeal contended that permission to appeal should be granted in the public interest on the following grounds:
“1. The Appeal, if allowed, will address the reliability and consistency by the Commission of evidence made by a Health Practitoner on the question of whether or not conclusions reached by the Health Practioner and backed by his own testimony in his report that an employee whom perceives that he was being bullied at his workplace should amount to a prima facie case bullying of the employee. In this respect, the Appeal will also examine if an employee who has been established by a Health Practitioner to perceive that he has been bullied on multiple occasions at his workplace meets the definition of the ‘bullying’ under the Fair Work Act 2009 (Cth) (‘the FW Act’);
2. The Appeal, if allowed, will settle inconsistences in the application of the definition of ‘bullying’ under the FW Act with other legislation and case law including worker’s
compensation legislation;
3. The Appeal, if allowed, will address if the investigation into the Appellant’s bullying complaints made in his Anti-Bullying Application filed on 2 June 2016 and conducted by a Brisbane-contractor (MJSP Consulting) was held in a fair and reasonable manner. In this respect, the Appeal will also address the reasonableness of the employer taking the investigation out of the Commission;
4. The Appeal, if allowed, will address the practice of an employers sending an employee to a discredited Health Practitioner for the Health Practitioner to provide the employer with a controversial, unsound and contradicting report that is subsequently relied by the employer to terminate the employee;
5. The Appeal, if allowed, will address the situation of an Applicant being provided with the most sound and robust evidence (Witness Statement of Appellant’s former work colleague) that confirms that he was bullied at the workplace after he was terminated by his employer based upon a report made by a Health Practitioner back by his testimony that employee perceived only that he was being;
6. The Appeal, if allowed, will address the fairness of an employer terminating an employee on the basis that a Health Practitioner's finding that the employee, if returned to the workplace at some future point in time, will continue to perceive that he is being bullied;
And
7. The Appeal, if allowed, will address inconsistencies with Application by Ms SB [2014] FWC 2104 (12 May 2014).”
[14] Mr Kennedy’s written and oral submissions dealt with a wide range of matters, many of which were of little or no relevance to the questions which the Deputy President answered in the Decision. The propositions advanced by Mr Kennedy which were of apparent relevance were, in summary and as we understand them, as follows:
• he intended at the hearing of his application to adduce evidence that he had actually been the subject of bullying at work;
• a conclusion that he was actually bullied at work would render Dr Walker’s diagnosis in the Report invalid and unreliable as a basis for dismissal, since the diagnosis was based on a conclusion that no bullying had in fact occurred;
• the Deputy President erred in answering the first question, having regard to numerous references in the Report to Mr Kennedy having merely “perceived” or “felt” that he had been bullied and the conclusions that if he returned to work in the future he would “expect” to be bullied or would likely “feel” bullied;
• if permission to appeal was not granted, it would be likely having regard to paragraph [27] of the Decision that Mr Kennedy would not be permitted to adduce evidence concerning bullying at work, which was foundational to his case for unfair dismissal.
Consideration
[15] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[16] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[17] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.3 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 4
[18] 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.5 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.6
[19] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 7
[20] In this matter we do not consider that it would be in the public interest to grant permission to appeal. We have reached this conclusion for three reasons. The first is that the Decision was a merely interlocutory one concerning a disputed subsidiary question of fact. The course adopted to resolve that question in a preliminary hearing was an unusual one, but that course was sought by Mr Kennedy and assented to by QGS. Appeals from interlocutory decision are not encouraged and permission to appeal from such decision is not usually granted. To the extent that any alleged error in the Decision here might ultimately affect the final result of Mr Kennedy’s unfair dismissal remedy application in a manner adverse to his interests, that can be dealt with in an appeal from the final decision and order. 8
[21] Second, and in any event, we consider that the appeal is lacking in merit. Mr Kennedy’s grounds of appeal approach the Decision as if it were a discretionary one, which it was not, but it is clear that the gravamen of the appeal for which permission is sought is that the Deputy President’s answer to the first question was factually incorrect. We do not consider that this is a reasonably arguable proposition. On a fair reading of the Report, Dr Walker did not express any view about whether Mr Kennedy had been the subject of bullying at work during his employment with QGS. Mr Kennedy relied upon the fact Dr Walker referred in a number of places in the Report to Mr Kennedy’s “perception”, “feeling” or “expectation” of being bullied, but such references are hardly surprising since Dr Walker’s task was to make a professional assessment of Mr Kennedy’s psychological state. This necessarily involved consideration of Mr Kennedy’s subjective perspective upon developments in his life, but it did not require the expression of any view as to the extent to which he was in fact bullied. Beyond recording Mr Kennedy’s belief that he had been the subject of bullying and harassment on various occasions, the Report did not essay any examination of or inquiry into the facts of any alleged bullying incident, and did not either in terms or by implication state any opinion as to whether Mr Kennedy had actually been bullied. Mr Kennedy referred to a sentence in the report which superficially appears to state as a fact that Mr Kennedy had been bullied (which is paradoxical since Mr Kennedy’s case was that Dr Walker formed the view that he had not been bullied) but, as the Deputy President pointed out, read in context of the Report as a whole, this was merely a recitation of Mr Kennedy’s account of relevant events under the heading of “History of Presenting Complaints”.
[22] The third reason is that the basis upon which permission to appeal is sought is misconceived. We have earlier set out the grounds upon which it is contended in the amended notice of appeal that the grant of permission to appeal would be in the public interest. We do not proposed to deal with each ground separately; it is sufficient to say these grounds are misconceived because they bear little relationship to the narrow question that the Deputy President dealt with in the Decision, and the grant of permission to appeal would not result in any of the matters identified in those grounds being addressed at an appeal hearing before a Full Bench.
[23] Mr Kennedy’s primary concern in seeking permission to appeal appears to be that paragraph [27] of the Decision foreshadows a refusal by the Deputy President to allow Mr Kennedy to adduce evidence of actual bullying at work during his employment with QGS. It is sufficient to say the Decision contains no determination of this issue and makes clear that the Deputy President intends to afford Mr Kennedy a further opportunity to be heard as to this matter. Mr Kennedy was dismissed on the ground of medical incapacity, and we consider that the Deputy President has appropriately signalled to Mr Kennedy that he will need to demonstrate the relevance of the evidence of bullying which he wishes to adduce to the question of whether dismissal on that basis was unfair. It of course remains open to Mr Kennedy to challenge the validity of Dr Walker’s conclusion about Mr Kennedy’s medical state at the time of his dismissal, and evidence relevant to that challenge will no doubt be admitted.
[24] Because we are not satisfied that the grant of permission would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the FW Act. Mr Kennedy’s unfair dismissal remedy application will be returned to the Deputy President and may now be listed for final hearing.
VICE PRESIDENT
Appearances:
R Kennedy on his own behalf
M O’Neil on behalf of Qantas Ground Services Pty Ltd
Hearing details:
2019.
Melbourne:
1 April.
Printed by authority of the Commonwealth Government Printer
<PR706431>
1 [2019] FWC 837
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
4 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
5 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
6 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
8 United Firefighters’ Union of Australia v Country Fire Authority[2013] FWCFB 8165 at [19], citing Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478
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