Sasa Bolta v Veem Ltd t/a Veem
[2018] FWCFB 3772
•26 JUNE 2018
| [2018] FWCFB 3772 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Sasa Bolta
v
Veem LTD t/a Veem
(C2018/2238)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2018] FWC 2019 of Deputy President Beaumont at Perth on 6 April 2018 in matter number U2017/11630.
Introduction
[1] On 27 April 2018 Mr Sasa Bolta lodged a notice of appeal in the Commission, for which permission to appeal is required, against a decision of Deputy President Beaumont issued on 6 April 2018 1 (Decision) in which the Deputy President dismissed Mr Bolta’s application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act). The Deputy President determined that the dismissal of Mr Bolta by his former employer, Veem Limited (Veem), on 20 October 2017 was not harsh, unjust or unreasonable.
[2] An appeal under section 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.
[3] Section 400 of the FW Act applies to this appeal. It 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.
[4] 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 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:5
“... 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...”
[5] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 6
[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. The test under section 400 of the FW Act has been characterised as “a stringent one” 7. This is so because an appeal cannot succeed in the absence of appealable error.8 However, as earlier stated the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
[7] 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. 10
[8] We have heard the parties to the appeal on both the question of permission and on the appeal at large. This decision determines those matters.
Consideration
[9] We have decided not to grant permission to appeal for two reasons. The first is that Mr Bolta’s appeal does not advance any reasonably arguable challenge to what we consider to be the critical conclusion reached by the Deputy President, namely that Mr Bolta’s conduct for which he was dismissed was serious misconduct constituting a valid reason for dismissal. No error of fact, let alone a significant error of fact is apparent in the Deputy President’s conclusions and reasons for decision.
[10] Secondly, we find no error of law or in the application of legal principle.
[11] The facts giving rise to Mr Bolta’s dismissal are set out in the Decision. By way of summary, Veem is an engineering company which manufactures equipment for the marine, aerospace, defence and oil and gas industries. One such manufactured product is a T-Foil, which is a large component attached to the hull of marine vessels used to create hydrodynamic lift. Veem had been engaged by a client in the Philippines to manufacture T-Foils for a passenger ferry.
[12] Mr Bolta was employed by Veem as an Inspector/Technician. His primary responsibility was to inspect products manufactured by his employer for faults and defects. He was an Inspector with accreditation from the regulator, the National Association of Testing Authorities (NATA). This empowered him to issue certificates endorsing that a manufactured product complied with product specifications consistent with the relevant Australian Standard. He had been trained in and was required to adhere to compliance testing procedures prior to issuing NATA endorsed certificates of compliance.
[13] On 29 August 2017 Mr Bolta inspected two T-Foils. He identified that each T-Foil had a defect requiring remediation. They were non-compliant and were returned to the welder’s bay. Mr Bolta completed his shift. The following day, 30 August 2017, Mr Bolta issued, under his name and signature, a NATA endorsed certificate of compliance for each T-Foil, certifying that each manufactured product was compliant. However, he did so without further inspecting or testing either product. His evidence was that whilst he had intended to do so, the products had already been packed for dispatch and other employees had advised him that the defects had been rectified.
[14] Veem’s client subsequently reported that the products were defective. The products were repaired at Veem’s expense in the Philippines. Veem commenced an investigation as to how the NATA certificate came to be issued by Mr Bolta. An Audit Report concluded that non-conformance was due to the final inspection not following inspection and certification requirements with responsibility attributed to Mr Bolta. After a series of disciplinary interviews with Mr Bolta, he was dismissed for serious misconduct.
[15] The Deputy President found that Mr Bolta had failed to conduct a final inspection on 30 August 2017. 11 She found that Mr Bolta was well aware that it was his responsibility to inspect the T-Foils and that he was not in a position to delegate that responsibility or to rely on the representations of others to complete the certification.12 She found that Mr Bolta issued the NATA certificates “in circumstances where he knew that he had not completed the final inspection and therefore his statement ‘1 Off T-Foil Final Inspection, Complies’ was a nonsense”.13
[16] Having examined the evidence, we have come to the firm conclusion that each of these findings by the Deputy President was correct. There was no error of fact, let alone significant error, in making these findings. Further, it was reasonable for the Deputy President to conclude from these facts that Mr Bolta’s conduct constituted serious misconduct and a valid reason for dismissal.
[17] On appeal, Mr Bolta contested the Deputy President’s conclusion that “his conduct and the preparation of documents thereafter perpetuated a deception”. 14 There was ample evidence before the Deputy President to conclude that representations on the certificates issued and signed by Mr Bolta on 30 August 2017 were false. Not only had Mr Bolta not conducted a test on 30 August 2017 when his certificates represented that he had done so, his representations that the outcome of his testing was that the products were compliant were also plainly wrong. As a consequence, any recipient of these certificates would have been misled into believing that a NATA accredited inspector by the name of Sasa Bolta had tested each product on 30 August 2017 in accordance with established procedures and certified them to be compliant with product standards and defect-free. Whether Mr Bolta’s intention was to mislead or deceive is not to the point. It is sufficient that in his certificates he stated facts which he knew not to be true, and thereby failed in his duty and perpetrated a deception, as concluded by the Deputy President.
[18] It was further contended by Mr Bolta that the Deputy President misapplied section 387(a) of the FW Act in that she did not consider circumstances specific to the conduct of Mr Bolta in concluding that there was a “valid reason for the dismissal”, consistent with the decisions in Allied Express Transport Pty Ltd v Anderson 15 and Edwards v Giudice and Others.16 We do not agree. It is apparent from her reasons for decision that the Deputy President specifically considered whether Mr Bolta’s conduct was of sufficient gravity or seriousness so as to warrant dismissal in reaching her conclusion that there was a valid reason for the dismissal.17 There was no misapplication of law or legal principle in so finding. The reason for Mr Bolta’s dismissal was sound, defensible and well founded. As such, it was a valid reason for dismissal.18
[19] For these reasons, the Decision, in respect of its critical findings and conclusions, is not attended by sufficient doubt as to warrant reconsideration. Mr Bolta’s appeal does not raise any issue of novelty or general application which would justify the grant of permission to appeal. We are therefore not satisfied that the grant of permission to appeal would be in the public interest.
Conclusion
[20] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
A. Stewart, solicitor on behalf of Mr Sasa Bolta.
J. Knoth, solicitor on behalf of Veem Limited.
Hearing details:
2018.
Melbourne video-link to Perth
13 June.
Printed by authority of the Commonwealth Government Printer
<PR608465>
1 [2018] FWC 2019
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] - [46]
4 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
7 (2011) 192 FCR 78; 207 IR 177 at [43]
8 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ; Wan v AIRC (2001) 116 FCR 481 at [30]
9 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; (2014) 241 IR 177 at [28]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
11 Decision at [98]
12 Decision at [101]
13 Decision at [104]
14 Decision at [109]
15 (1998) 81 IR 410
16 (1999) 169 ALR 89
17 Decision at [109]
18 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
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