Shaleen Wharton v Regional Development Australia (RDA) Brisbane
[2022] FWCFB 30
•11 MARCH 2022
| [2022] FWCFB 30 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Shaleen Wharton
v
Regional Development Australia (RDA) Brisbane
(C2021/8379)
| VICE PRESIDENT CATANZARITI | SYDNEY, 11 MARCH 2022 |
Appeal against decision [2021] FWC 6392 of Deputy President Lake at Brisbane on 19 November 2021 in matter number U2021/5944 – permission to appeal refused.
Ms Shaleen Wharton (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] (the Decision) of Deputy President Lake (Deputy President) issued on 19 November 2021. The Decision dealt with an application made pursuant to s.394 of the Act for an unfair dismissal remedy.
The Appellant alleged that she was unfairly dismissed from her employment with Regional Development Australia (the Respondent). In the matter at first instance, the Respondent raised a jurisdictional objection to the Appellant’s application for an unfair dismissal remedy, being that the Appellant was dismissed in compliance with the Small Business Fair Dismissal Code (the Code).
This matter was listed for permission to appeal and the merits of the appeal. Accordingly, directions were issued for the filing of material by both parties. Both parties indicated that they consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
For the reasons that follow permission to appeal is refused.
Decision Under Appeal
The Appellant was employed by the Respondent as a Regional Development Support Officer until she was dismissed for serious misconduct on 29 June 2021. During her employment, the Appellant worked on what is known as the R2R Project, an initiative developed under the auspices of the Respondent.
In June 2021, the Respondent became concerned that the Appellant, and other consultants, were purporting to assert ownership to the rights and intellectual property (IP) of the R2R Project. Following an investigation, the Respondent put allegations to the Appellant that she had planned to assert ownership to the rights and IP of the R2R project. These allegations were put to the Appellant on 28 June 2021 and she was given until 5pm on 29 June 2021 to provide any further response to the allegations. The Respondent indicated that a subsequent meeting on 30 June 2021 would take place at which time the Respondent would make its decision regarding the Appellant’s employment. The Appellant did not provide any further material by the prescribed time and subsequently, the Respondent terminated her employment on the evening of 29 June 2021.
The Deputy President dealt first with the issue of legal representation. The Appellant sought to be represented by Mr John Shepley of counsel. The Respondent was represented by Ms Robin Roberts, in her volunteer capacity as Deputy Chair of the Respondent, and as such was not represented by a lawyer or a paid agent. The Respondent opposed the granting of representation to the Appellant. The Deputy President ultimately refused to grant permission for representation but allowed Mr Shepley to be present at the hearing in the matter at first instance. The Deputy President also purported to grant permission to Mr Shepley to assist in preparing the Appellant’s written submissions. While the issue of representation is not directly relevant to this appeal, we will return to it later in this decision to clarify the rules regarding representation.
The Deputy President then turned to preliminary matters. Relevantly and as aforementioned, the Respondent contended that the Appellant’s dismissal was consistent with the Code. It was not in dispute that the Respondent, at the relevant time, was a small business employer. As required by s.396 of the Act, the Deputy President considered first whether the dismissal was consistent with the Code. The Deputy President extracted the relevant parts of the Code as follows:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report…”
In the proceedings at first instance, the Respondent contended that the Appellant’s intention to take the R2R Program from the auspices of the Respondent to derive personal benefit and the steps taken to act upon that intention formed a valid reason for summary dismissal. Further, the Respondent contended that this summary dismissal was effected in accordance with the Code and that it had afforded the Appellant natural justice in the dismissal process. Ultimately, the Respondent submitted that it was reasonable for Ms Roberts to form the view, based on the evidence before her, that the Appellant’s conduct was sufficiently serious to justify immediate dismissal and that there was a reasonable basis for this belief.
The Respondent led evidence to support its contention that there was a reasonable basis to form the belief that the Appellant has engaged in serious misconduct. Specifically, the Respondent adduced evidence of the Appellant’s signed employment contract which contained the following clause:
“Any and all ideas, concepts, techniques, studies, research, findings, presentations, inventions, discoveries, designs, improvements or items capable of protection by letters patent, design registration, copyright or any other form of protection made or discovered by the Employee during their Employment (either alone or with any other person), whether during our outside of office hours, will belong absolutely to the Employer and the Employee agrees to execute any document required to give effect to this.”
Further evidence included an email from the Appellant to the Chair of the Respondent’s Board asserting that she and other consultants own the IP rights to the R2R Program and a transcript of the meeting between the Appellant and Ms Roberts conducted on 28 June 2021. We will not reproduce the entirety of that transcript in this decision but relevantly, the Appellant said words to the effect that she was “retaking ownership” of the IP in the R2R Program. The Appellant was also queried regarding why she had created a version of the R2R proposal wherein any reference to the Respondent was removed and the Appellant’s personal contact information was inserted.
Additional correspondence was adduced by the Respondent in which the Appellant asserted ownership of the R2R Project. Certain pieces of correspondence also evinced an intention on the Appellant’s part to take the program away from the Respondent to another organisation. Relevantly, the Appellant accepted, in cross-examination, that there were multiple pieces of correspondence evidencing this intention but said “nothing eventuated, nothing happened”.
The Appellant contended that she had been unfairly dismissed and made a number of submissions in support of this contention. Relevant to this appeal are contentions that Ms Roberts provided no evidence that she was authorised to terminate the Appellant’s employment and that the Respondent did not provide the Appellant with a transcript of the meeting held on 28 June 2021. The other contentions advanced by the Appellant at first instance are not issues raised on appeal and we will not repeat them.
Having outlined the parties’ submissions and evidence, the Deputy President considered whether the Appellant’s dismissal was consistent with the Code. The Deputy President concluded that based on the evidence before him, the Appellant’s actions constituted serious misconduct and made the continuation of her employment unfeasible. The Deputy President also found that at the time of the Appellant’s dismissal the Respondent held a reasonable belief that her conduct was sufficiently serious to justify immediate dismissal. Accordingly, the Deputy President upheld the Respondent’s jurisdictional objection and dismissed the Appellant’s application for an unfair dismissal remedy.
Principles of Appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[2]
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.[3] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Grounds of Appeal and Submissions
The Appellant’s grounds of appeal and submissions are lengthy. They contain extracts of paragraphs from the decision at first instance and sections of the Queensland Criminal Code 1889. They can be summarised as follows:
In order to avail themselves of the Code the Respondent has a responsibility of “strict liability” to “ensure that all content of the termination can be verified as being valid”.
There was no admission by the Appellant to theft of the intellectual property and the Commission is not in a position to find that there was a theft.
The Deputy President was in gross error at paragraphs [58] – [60] of the Decision.
The Deputy President did not deal with the Appellant’s request for a transcript of the meeting on 28 June 2021.
The Appellant was not given a reasonable opportunity to respond to the allegations of serious misconduct.
The Deputy President denied the Appellant legal representation and on 34 occasions interrupted the Appellant in her questioning of the Respondent’s witness. On 20 occasions the Deputy President interrupted the Appellant and answered questions of behalf of the Respondent. On 50 occasions the Deputy President intervened when witnesses were answering questions to advise that they should answer only with a “yes” or “no” response.
Consideration
Ground 1
In support of the summarised ground 1of the appeal, the Appellant submits the following “For an employer to avail themselves of the Small Business Fair Dismissal Code, it is submitted that the employer to obtain that benefit has a responsibility of strict liability to ensure that all content of the termination can be verified as being valid.” This contention has no legal basis. The Appellant has not provided any form of legal authority to support such a contention and it is unclear to us what is meant by this submission.
We reject ground 1 of the appeal.
Ground 2
In support of this ground of appeal, the Appellant contends that she has not been guilty of theft in a legal sense. The Appellant has quoted from the criminal code in support of this contention. This ground of appeal is misconceived. The task before the Deputy President at first instance was to assess whether or not a summary dismissal has occurred in compliance with the Code. Theft does not need to be proven in a criminal sense in order for there to be serious misconduct for which summary dismissal is warranted.
In Pinawin T/A RoseVi.Hair.Face.Body v Domingo (Pinawin)[4] a differently constituted Full Bench considered and summarised the law regarding the application of the Code in relation to summary dismissals at [27] – [29]:
“[27] Deputy President Bartel in Narong Kammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café said:
“[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”
[28] Senior Deputy President O’Callaghan in Harley v Rosecrest Asset Pty Ltd T/A Can Do International said:
“[8] For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.
[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquiries or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”
[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
[Footnotes omitted]
The task before the Deputy President was to determine whether the Respondent held a belief that the Appellant’s conduct was sufficiently serious to justify immediate dismissal and, to determine whether this belief was based on reasonable grounds. A fair reading of the Decision indicates the Deputy President correctly applied the principles enunciated in Pinawin to reach the conclusion that the Respondent did comply with the Code in summarily dismissing the Appellant. Furthermore, based on the evidence before him it was reasonably open to the Deputy President to conclude there had been compliance with the Code and we agree with this conclusion.
We reject ground 2 of the appeal.
Ground 3
The Appellant advances no arguments in support of her assertion that the Deputy President is in “gross error” at paragraphs [58] – [60] of the Decision.
We reject ground 3 of the appeal.
Grounds 4 and 5
It is convenient to deal with grounds 4 and 5 together. These grounds of appeal essentially take issue with the Respondent’s dismissal process. Specifically, the Appellant complains that she was not given a transcript of the interview which occurred on 28 June 2021 and that she was not given adequate time to respond to allegations of misconduct.
Firstly, these grounds of appeal do not identify error in the Decision. They are mere complaints regarding the Respondent’s dismissal process which have already been heard in the proceedings at first instance.
Secondly, in the case of summary dismissals made in compliance with the Code, notice or warning need not be given to the employee being dismissed. Further, in cases where the ‘summary dismissal’ limb of the Code is relied on, there is no strict requirement for a meeting to be conducted with the employee although this may be relevant to whether the employer has reasonable grounds for believing that the employee engaged in sufficiently serious conduct to justify immediate dismissal. If there is a requirement for an employer to conduct a meeting, there is no requirement that a transcript of that meeting is provided to the employee subject to the dismissal. The Respondent summarily dismissed the Appellant in compliance with the code and therefore has no obligation to provide her with notice or warning, or a transcript of any meeting that was conducted prior to the dismissal.
We reject grounds 4 and 5 of the appeal.
Ground 6
Ground 6 takes issue with the Deputy President’s refusal to allow legal representation and the manner in which he conducted the hearing at first instance. A refusal to allow legal representation is an interlocutory decision which should have been appealed at the relevant time. The appeal currently before us is an appeal of the substantive matter at first instance – it is not an appeal of the Deputy President’s interlocutory decision to refuse representation. It is inappropriate for this Full Bench to deal with the issue of representation when it is raised in its current form – as submissions to a merits appeal. If the Appellant wishes to appeal the interlocutory decision to refuse representation, then a separate appeal should be filed. We note that such an appeal would be out of time.
We have reviewed the transcript of the hearing at first instance and find that there is nothing unorthodox in the way the Deputy President conducted proceedings. Members of the Commission often take an active role, especially in cases with unrepresented parties, in proceedings to assist parties and ensure that the hearing progresses in an orderly manner. We find no issue with the Deputy President’s management of the proceedings at first instance. The Appellant’s contention that the Respondent required “yes or no” answers from witnesses during cross-examination does not disclose any appealable error in the Decision. We note that requiring “yes or no” answers during cross-examination is not an unusual practice.
We reject ground 6 of the appeal.
Issues regarding representation
As outlined above, issues regarding legal representation are not central to this appeal, however, we find it appropriate to take the opportunity to correct a misconception in the Decision. At paragraph [7] we noted that the Deputy President purported to grant legal representation to the Appellant insofar as allowing Mr Shepley to assist with written submissions. It is a misconception that permission needs to be granted to lawyers to assist with drafting submissions.
Rule 12 of the Fair Work Commission Rules 2013 (the Rules) reads as follows:
“12 Representation by lawyers and paid agents
(1) For the purposes of subsection 596(1) of the [Fair Work Act 2009], in any matter before the Commission, a person:
(a) must not, without the permission of the Commission, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but
(b) may otherwise, without the permission of the Commission, be represented by a lawyer or paid agent in the matter.”
As Rule 12 clearly states, permission is not required for a lawyer or paid agent to prepare written submissions on behalf of a party. Permission is only required for representation in a conference or hearing before the Commission.
Public Interest
Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Deputy President reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence before him. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400(1) that:
- There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
- The appeal raises issues of importance and/or general application;
- The Decision at first instance manifests an injustice, or the result is counter intuitive; or
- The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
Appellant’s written submissions 6 January 2022.
Respondent’s written submissions 28 January 2022.
[1] Wharton v Regional Development Australia [2021] FWC 6392.
[2] (2010) 197 IR 266 at [27].
[3] Wan v AIRC (2001) 116 FCR 481 at [30].
[4] (2021) 219 IR 128.
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