Srinivas Chakravarthy Mangamuri v Linfox Armaguard Pty Ltd T/A Armaguard
[2022] FWCFB 148
•3 AUGUST 2022
| [2022] FWCFB 148 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Srinivas Chakravarthy Mangamuri
v
Linfox Armaguard Pty Ltd T/A Armaguard
(C2022/3050)
| DEPUTY PRESIDENT MASSON COMMISSIONER HAMPTON | MELBOURNE, 3 AUGUST 2022 |
Appeal against decision [2022] FWC 763 of Deputy President Gostencnik at Melbourne on 2 May 2022 in matter number U2021/9126 – permission to appeal refused.
Introduction
Mr Srinivas Chakravarthy Mangamuri (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision of Deputy President Gostencnik issued on 2 May 2022 in matter U2021/9126 (the Decision)[1]. The Decision dealt with an application made pursuant to s.394 of the Act for an unfair dismissal remedy.
The Appellant alleged that he was unfairly dismissed from his employment with Linfox Armaguard Pty Ltd T/A Armaguard (Armaguard). In the matter at first instance, the Deputy President was not satisfied that Appellant’s dismissal was harsh, unjust or unreasonable and, as a result, found that the Appellant was not unfairly dismissed within the meaning of s.385 of the Act.
The matter was listed for permission to appeal only. Directions were issued on 30 May 2022 for the filing of submissions and material and the matter was listed for hearing on 5 July 2022. The Appellant filed submissions in accordance with the directions. At the hearing on 5 July 2022, the Appellant was self-represented and Armaguard was represented by its Workplace Relations Manager, Mr Blake Byrne.
For the reasons that follow, we are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is therefore refused.
The Decision
The Deputy President commenced his determination of the Appellant’s unfair dismissal application by briefly setting out some relevant background facts, those being;
· the Appellant is a permanent resident of Australia;
· at the time of the Appellant’s dismissal on 23 September 2021, he was in Hyderabad, India where he had been for some time;
· the Appellant had not attended work since at least 4 April 2019 and the nature of his position did not allow for the remote performance of his role;
· at the time of the hearing of his application by the Deputy President, the Appellant remained in India but said he would return to Australia if he were reinstated; and
· international travel restrictions imposed by the Australian government from 9.00pm on 20 March 2020 in response to the COVID-19 pandemic has made returning to Australia difficult, notwithstanding exemptions for Australian citizens and permanent residents (including immediate family) that were able to be sought to enable entry to Australia.[2]
The Deputy President then detailed the material facts which he observed were not seriously in dispute, and which may be summarised as follows;
· The Appellant travelled to Hyderabad, India on 10 February 2019 to deal with the care of his father whose health was deteriorating. He returned to Australia on 24 March 2019 and attended work and then returned to Hyderabad on 4 April 2019 to care for both his father and mother who had both been hospitalised.[3]
· The Appellant applied for and used accrued personal leave and annual leave to cover various periods of absence from work. This included an application made on 25 July 2019 for a period of 20 weeks annual leave, which was approved, and ended on 25 September 2019.[4]
· Despite the above-referred approved period of annual leave ending on 25 September 2019, the Appellant continued to be paid up until 7 November 2019. The Appellant gave evidence that he kept quiet about continuing to be paid after 25 September 2019 and assumed he would continue to be paid up until approximately 15 March 2020[5].
· The Appellant was not paid after 9 November 2019 and was on various periods of unapproved unpaid leave.[6]
· On 16 January 2020, Armaguard’s Cash Processing Manager Mr Dickson sent the Appellant an email with attached correspondence regarding his continued absence from work. The attached letter indicated that the Appellant had failed to attend work since his approved annual leave had ended, he had not contacted his line manager to explain his absence and it was foreshadowed that he would be regarded as having abandoned his employment if he did not respond to the letter within fourteen days.[7]
· On 29 January 2020, the Appellant responded to Mr Dickson’s correspondence of 16 January 2020 and in doing so applied for long service leave (LSL) to be backdated from 9 November 2019 to 15 February 2020. On 31 January 2020, Mr Dickson responded stating that the Appellant’s absence from work was unapproved, that his application for LSL was in breach of Armaguard’s LSL policy and was not approved. He was directed to return to work on 3 February 2020, failing which he would be exposed to the risk of further disciplinary action.[8]
· The Appellant did not attend work on 3 February 2020 as directed but sent an email to Mr Dickson on 2 February 2020 stating he was unable to return to work as he was the primary care giver for his father and that he would be using all of his LSL which he assumed would last until 15 March 2020. A second warning letter was issued by Mr Dickson to the Appellant on 6 February 2020 directing him to return to work on 11 February 2020 following which the Appellant sent an email stating that he was “going on carers leave” from 11 February 2020.[9]
· On 11 February 2020, the Appellant sent applications to Mr Dickson for various forms of leave (annual leave, LSL and personal leave) to cover the period from 8 November 2019 to 13 March 2020. In doing so, he requested that the period from 8 November 2019 to 10 February 2020 be paid as carers leave and that his accrued annual leave and LSL be paid for the balance of the prospective period of leave.[10]
· On 24 February 2020, the Appellant sent a follow-up email to Mr Dickson requesting advice on the status of his leave applications and when he would be paid[11].
· On 27 February 2020, Ms De Luca who is a HR officer with Armaguard, sent show cause correspondence to the Appellant setting out concerns regarding his conduct including that he was on unapproved leave, that his retrospective leave applications were in breach of policy, that he was in breach of his employment obligations and had failed to comply with two previous directions to return to work. The Appellant was given until 2 March 2020 to respond.[12]
· On 2 March 2020, the Appellant responded to the show cause correspondence of 27 February 2020. In doing so he variously claimed that he had previously outlined the reason that compelled his prolonged absence, that of caring for his father and that various leave applications he had made were made prospectively. He also enclosed various medical information going to his father’s condition and stated at the conclusion of the letter that he had “organised and trained a person to care for my father and can come back to work.” The Appellant went on to state in the email that “once you clear the application forms and make the payments, I can book my tickets.”[13]
· Mr Dickson received the 2 March 2020 correspondence from the Appellant and formed the view that the Appellant was still in India, was still caring for his father and intended to continue on carers leave. Mr Dickson misunderstood the correspondence in which the Appellant had indicated he was able to return to work having trained up another person to care for his father.[14]
· Ms Demirova who is Armaguard’s Group Manager – Industrial Relations, was requested by Mr Dickson to respond to the Appellant’s email but did not do so until 9 June 2020. While the Appellant was advised in the 9 June 2020 correspondence that the period from 11 November 2019 to 13 March 2020 was to be treated as approved carers leave, he was also asked to specify his anticipated return to work date and was advised that further disciplinary action was likely if he failed to respond. The delay in Armaguard’s response to the Appellant’s 2 March 2020 email was described by the Deputy President as “unsatisfactory” in circumstances where the Appellant was being asked to in effect “show cause” why he should not be dismissed[15].
· On 12 June 2020, the Appellant responded to Ms Demirova’s 9 June 2020 correspondence and in doing so sought an explanation as to why Armaguard had taken so long to respond to him, sought advice on his employment and JobKeeper status and requested advice on when he could come back to work. The Appellant did not advise Armaguard of his anticipated return to work date.[16]
· No further action was taken by Armaguard for a period of 13 months due to what it described as a number of “operational issues”, at which point Mr Dickson sent an email with an attached letter to the Appellant on 18 August 2021. The Appellant was asked to advise of his expected return date. The letter also stated that the Appellant’s failure to contact Armaguard since 11 June 2020 and his continued absence from work was “prima facie evidence” of the Appellant having abandoned his employment. The Appellant was given until 31 August 2021 to contact Mr Dickson.[17] The Deputy President observed that the attempt by Armaguard to sheet home all blame to the Appellant for the lack of contact for 13 months was “self-serving and misleading”.
· On 31 August 2021, the Appellant responded to Mr Dickson complaining of Armaguard’s failure to respond in a timely manner to his 12 June 2020 email. The Appellant sought to place all blame on Armaguard for the lack of contact, a point not accepted by the Deputy President. The Appellant also asked to be advised “when he should return to work.” [18]
· On 1 September 2021, Mr Dickson sent further correspondence to the Appellant stating that it appeared from the Appellant’s 31 August 2021 correspondence that he had repudiated his contract of employment. The Appellant was advised that Armaguard was considering the termination of his employment and he was invited to provide any further material relating to his return to Australia and ability to perform his role. A response on or by 15 September 2021 was sought.[19]
· On 15 September 2021, the Appellant responded advising that he would be returning when the international borders re-opened and assumed it would be around mid-January 2022. He also claimed in the response that he had been in contact with Armaguard and it had failed to give him an exact date to return to work.[20] No fixed date of return was provided by the Appellant.[21]
· By letter dated 23 September 2021, the Appellant was notified of his dismissal without notice “for contract repudiation”.[22]
The Deputy President then dealt with preliminary matters and found that the Appellant was “protected from unfair dismissal” (s.382), that as Armaguard was not a small business the Small Business Fair Dismissal Code did not apply (s.385(c)) and the dismissal was not a case of genuine redundancy (s.385(d)). He then turned to consider whether the Appellant’s dismissal was harsh, unjust or unreasonable by reference to the criteria set out at s.387 of the Act.
Before turning to consider each of the s.387 criteria, the Deputy President observed that the Appellant had not “properly engaged” with those criteria but had advanced a number of grounds of contended unfairness in his dismissal. The Deputy President then dealt with each of those reasons advanced by the Appellant and relevantly found as follows;
· The Appellant’s contention that Armaguard had failed to promptly deal with his leave applications and that he was not aware that his leave had concluded until 16 January 2020 was rejected, in part due the Appellant’s own admission that “he just kept quiet” after his initial leave period concluded. The Deputy President found that the Appellant could and should have applied for further leave after his original leave period concluded, but he did not. That the Appellant was unable to afford a return ticket to Australia was not a matter of the Respondent’s making.[23]
· As to the Appellant’s claim that he could not travel to Australia because of international border closures, there was no evidence of any attempts made by the Appellant to obtain permission to return through the available exemptions.[24]
· The Appellant’s claim that he was willing to return to work and to provide a return to work date subject to Armaguard providing him with information on how his wages would be paid and his hours of work was rejected. These concerns were no barrier to his return to Australia and to work according to the Deputy President.[25]
· The Appellant’s claim that that he needed Armaguard to specify a date by which he was required to return to work was also found to be devoid of merit as Armaguard had, on a number of occasions, requested the Appellant to provide an estimated return to work date.[26]
· The Appellant also submitted that the if Armaguard was dissatisfied with his estimated return date of mid-January 2022, it should have provided him with an alternate date. This contention was also found to lack merit as the estimated date was still many months away. Furthermore, based on Armaguard’s previous requests to the Appellant for return to work date advice, the suggestion by the Appellant that Armaguard should have once again given him a date on which he was required to return was described by the Deputy President as disingenuous.[27]
· The Appellant’s claim that he was dismissed for raising workplace issues and requesting Mr Fox’s email address was also found to be devoid of merit. There was no evidentiary foundation to the claim and the workplace issues belatedly raised by the Appellant were not previously raised in earlier correspondence with Armaguard.[28]
The Deputy President then turned to consider whether there was a valid reason for the Appellant’s dismissal. In considering whether the Appellant’s dismissal for reasons of contract repudiation and inability to render substantial performance, the Deputy President stated as follows;
“[52] The failure to comply with the directions given by the Respondent to the Applicant at various points throughout 2020 to return to work and/or to provide a date on which he intends to return to work are not matters on which the Respondent can now rely to as founding a valid reason. This is because it failed to act until more than 13 months after the last of those events and because it changed its position by first denying then approving the Applicant’s retrospective leave requests. Thus, the Applicant was on approved leave during periods when he had been directed to attend for work. In my view, the Respondent has waived its right to terminate the Respondent’s employment on those grounds. But even if it has not, the passage of time between the known (mis)conduct means that the act of dismissal would not be for a reason that is sound, defensible, or well-founded.
[53] That said, these circumstances are relevant in assessing whether at the time of the Applicant’s dismissal there was a valid reason for the dismissal. Ultimately, the Respondent required the Applicant to return to work. He was absent from work without approval for any leave (paid or unpaid) for a significant period. Attempts to get clarity about his intended return date were met with obfuscation and distraction. He was not likely to return to Australia soon if at all. He is yet to return. He provided no evidence to the Respondent of any attempts to return to Australia or attempts to make such arrangements. Because of his location in Hyderabad, he was not able to attend for work and perform his duties. It seems plain enough from the various exchanges discussed above, the Applicant was also not ready, nor willing (or at least excessively reluctant) to return to work to perform the job into which he had been employed. The situation had to be brought to a head. Whether by design or inadvertence, the Respondent had for some time tolerated the position of the Applicant’s absence and his repeated failure, despite directions, to return to work. That the Applicant might have had some difficulty in returning to Australia is a matter almost entirely of his own making. He had the opportunity to return to Australia in early March 2020, before international travel was restricted. His alleged financial position at the time (a matter about which I have no probative evidence) was likely brought about by his failure to apply for leave immediately after 7 November 2019 and his attitude of keeping quiet about the leave situation.
[54] On the evidence, at the time of his dismissal the Applicant was not ready, willing or able to attend for work, that position had pertained for quite some time, the prospect of him returning to work in the near future was vague and this provided a valid reason for his dismissal. The fundamental employment obligation that, as a full-time employee, the Applicant attend for work and perform work for the Respondent, was not being, and could not be met. I am therefore satisfied there was a valid reason for his dismissal. The valid reason related to both his conduct and his capacity.”
Having found there was a valid reason for the Appellant’s dismissal, the Deputy President then considered the balance of the s.387 criteria. In doing so he found that;
· the Appellant was notified of the reason for his dismissal and had an opportunity to respond (ss.387(b) & (c)), this weighing in favour of a finding that the dismissal was not unfair;[29]
· as there were no in-person discussions due in large part to the Appellant’s location, s.387(d) consideration did not arise;[30]
· the dismissal was not related to unsatisfactory performance, therefore s.387(e) consideration did not arise[31]; and
· the impact of the size of Armaguard in respect of the procedures followed (s.387(f)) weighed neutrally[32] while the absence of dedicated human resources specialists/expertise (s.387(g)) did not arise for consideration given the presence of dedicated HR professionals within Armaguard.[33]
The Deputy President then turned to consider whether there were any other relevant matters (s.387(h)) that needed to be weighed and in doing so dealt with a number of submissions of the Appellant and relevantly found that;
· there was nothing in the manner of Armaguard’s notification of the dismissal that was inappropriate in the circumstances[34];
· no evidence was put forward by the Appellant to support his contention that his job was still vacant, but even if it were, it was not relevant to the question of the Appellant’s dismissal[35];
· the fact that the Appellant’s dismissal occurred during a period of border closures might have been relevant if the Appellant had provided evidence of his unsuccessful attempts to return to Australia;
· the Appellant’s claim that he could not fulfil his contractual obligations due to his being in India because of the pandemic lockdown did not weigh in the Appellant’s favour because he could have returned to Australia in early March 2020 but did not do so;
· the Appellant was “stuck” in Hyderabad, not because of Armaguard’s initial refusal to approve his retrospective leave applications, but because of a combination of bad decisions the Appellant made;
· there was no evidence to support the contention that Armaguard were seeking COVID-19 disaster payments from the Australian government or that the Appellant had filled out the necessary JobKeeper paperwork;
· there was little by way of probative evidence to support the Appellant’s claims of workplace issues[36]; and
· while the Appellant’s 20 years’ service was relevant, it did not weigh so heavily in the circumstances against a conclusion that the dismissal was not unfair.[37] Nor did the Appellant’s age weigh in favour of a finding of unfairness particularly when the Appellant was not in Australia and had shown no real intention of returning.[38]
The Deputy President then concluded as follows;
“[69] In the result there was a valid reason for the dismissal related to the Applicant’s capacity and conduct. This fact combined with procedural fairness considerations in s 387 weigh significantly in favour of a conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable. The other statutorily mandated considerations weigh neutrally or do not arise. Most of the other matters said to be relevant by the Applicant did not assist him. The two matters I have identified above that weigh in his favour are not in the circumstances of such moment as to outweigh the other matters pointing squarely to a conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable. In the course of its dealings with the Applicant, the Respondent was, speaking colloquially, very slack in responding to the Applicant. On one occasion a period of three months elapsed, on another 13 months passed without any action – on reflection “very slack” is perhaps too kind. But this delay was in the end favourable to the Applicant, because on any view, the employment relationship could properly have been brought to an end much earlier.
[70] Consequently, taking all of these matters into account as I have the set out above, I am not persuaded the dismissal was harsh, unjust or unreasonable. It therefore was not unfair. The Applicant’s application for an unfair dismissal remedy will be dismissed.”
Grounds of appeal
The Appellant contends that that the Deputy President made factual errors or failed to take into account relevant considerations. We understand the alleged errors to be that the Deputy President;
(1)failed to take into account that that the Appellant required a travel exemption to return to Australia and that the Appellant’s job was not in a category that would have enabled him to obtain a travel exemption;
(2)failed to take into account that the Appellant was waiting on information from Armaguard so that he could apply for a travel exemption to allow his return to Australia;
(3)failed to take into account that the Appellant was dismissed in circumstances where Armaguard was not operating at full capacity, was allegedly paying its employees JobKeeper and that Armaguard mislead the Commission as to its ability to offer the Appellant full time work had he returned to Australia;
(4)failed to take into account that Armaguard promised in its 9 June 2020 letter to pay his retrospectively approved leave for the period 9 November 2019 to 13 March 2020 and then failed to make such payment until one month after his termination of employment on 23 October 2021;
(5)failed to take into account Armaguard’s mismanagement of his leave applications, first rejecting then subsequently approving those applications;
(6)failed to take into account that Armaguard’s delayed approval of the Appellant’s requested leave, and the delayed payment for such leave, meant that the Appellant was unable to afford a ticket to return to Australia;
(7)failed to take into account the adverse action alleged to have been taken against the Appellant by Armaguard after the Appellant had raised workplace issues and sought the contact details of Mr Peter Fox;
(8)erred by finding at [31] of the Decision that the Appellant had not provided a “fixed date for his return”; and
(9)failed to take into account the exceptional circumstances of the COVID-19 pandemic and the Appellant’s caring responsibilities in respect of his father which meant that he was unable to provide a specific date of return to Australia.
The Appellant submits that the public interest is enlivened by reason of multiple factual errors in the Decision and that the impact of the COVID-19 pandemic, including border restrictions which were in place from 20 March 2020 to 1 November 2021, were beyond his control.
The nature of unfair dismissal appeals
An appeal under s 604 of the 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.[39] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies.[40] 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[41] 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.[42] 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.”[43]
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.[44] 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.[45]
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.[46] However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration
We turn now to consider the contended errors in the Decision.
Travel exemption requirement
The Appellant contends that the Deputy President failed to take into account that a travel exemption was required by the Appellant to return to Australia and that the Appellant’s job was not in a category that would have enabled him to obtain a travel exemption. The submission must be rejected. The Deputy President was clearly alive to that issue as evidenced by his statements at [1] of the Decision when he acknowledged the difficulties confronted by Australian residents and/or permanent residents in returning to Australia following the border closure on 20 March 2020. The submission made on appeal ignores a fundamental point, that being the Appellant could have returned to Australia before the 20 March 2020 border restrictions were imposed, but he did not do so, a point the Deputy President correctly made[47]. Fatally to the Appellant’s argument, the Deputy President also found at [44] that there was no evidence that the Appellant made an application for a travel exemption despite claiming that he could not return to Australia because of his inability to secure a travel exemption. No error let alone appealable error is disclosed.
The Appellant’s further claim that the Deputy President failed to take into account that the Appellant was waiting on information from Armaguard so that he could apply for a travel exemption to allow his return to Australia is also devoid of any merit. Contrary to the Appellant’s submission, he was not waiting on information from Armaguard because he had made no such request. This is clear from the following exchange during cross-examination of the Appellant by Mr Byrne during the first instance hearing;
PN98That's not what you say in SD7, though, Mr Mangamuri. At no point, Mr Mangamuri, did you say to Armaguard, 'I have made the following inquiries. I need you to provide me with this material.' You never said that to anyone from Armaguard, did you, Mr Mangamuri - or at least in SD7 can you show me where you've said that, because I can't see it?---I didn't say that, but what I mean is that - in that one I didn't mention about that, but that is the reason why I was seeking the information. The main intention is to get the permission from the Border Force. That is the reason why I was asking for all that details.
PN99So at no point between 12 June 2020 and 18 August 2021 did you make contact with a representative of Armaguard and seek information from them to allow you to return to Australia. You made no contact to assist you. That's correct?---Yes, because the situation - I know the situation at Armaguard, what is happening there, and based on that situation I can't make the application. They're not working full-time. They are taking the JobKeeper payment things and they are taking the COVID disaster payments, and I'm not eligible to come, you know. I have - they're not working full-time and the job is not a critical service job.
……………………
PN109My question, Mr Mangamuri, was with regards to requesting a letter that you say you needed from Armaguard. Where in your email on 12 June 2020 did you ask Armaguard for that correspondence?---Yes, I asked on 12 June 2020. The mail is there, yes.
PN110But, Mr Mangamuri, I put it to you that that document, nowhere in that document did you request a letter from Armaguard for you to use as part of your application to return to Australia?---I didn't request - if they provide me the information it automatically becomes a letter from me. If they respond to that email it becomes a letter from me. If someone there can - - - [48]
The Deputy President was correct not to take into account that the Appellant was waiting on information from Armaguard to assist his preparation of an application for a travel exemption. That is for the simple reason that no request was ever made by the Appellant for such information. No error let alone appealable error is disclosed.
Hours of work and JobKeeper
The Appellant also contends that the Deputy President failed to take into account that the Appellant was dismissed in circumstances where Armaguard was not operating at full capacity or that Armaguard had misled the Deputy President in relation to that issue. This submission also lacks merit.
It is apparent from the cross examination of the Appellant during the first instance proceedings that the Appellant made various claims of reduced hours being worked by staff at Armaguard and of JobKeeper payments being made to staff during the pandemic. When pressed during cross examination, the Appellant was unable to state that he contacted Armaguard directly to ‘fact check’ the information he claimed to have obtained from his friends regarding working arrangements at Armaguard. This can be seen from the following questions put to the Appellant by Mr Byrne;
PN102You have said a variety of items surrounding Armaguard and its situation and its status and, you know, what work was available to you. My question is where in your material have you provided evidence that Armaguard told you these things?---Because I was communicating with my friends and they were telling me what's happening there. I was in touch with (indistinct) colleagues and how the work is, and I was discussing with them how many days they're working, and all those things I was getting information. So I just - you know, I'm not eligible so I just kept quiet.
PN103 So when your friends told you allegedly what was occurring in Armaguard, you made no attempt at that point to contact management and fact-check or get a better understanding of what was occurring. You chose not to contact Armaguard. Is that what occurred?---Based on the situation, sir, I just to - formed the view, you know, that on the other side the situation is not good. The country is in lockdown and I can't go there and they are not working full-time, and even here the situation in India is also not good. So that is the reason why I just kept quiet.[49]
In the absence of any probative evidence, the Deputy President was correct to place no weight on the Appellant’s claims of reduced available hours of work and JobKeeper payments being made to Armaguard staff. It is also significant that the Deputy President found that the demands made on Armaguard by the Appellant for details on his hours of work and payments he would receive before he returned to work were in any event “not a barrier to his return.” We agree with the Deputy President. No error is disclosed.
Leave applications
The appellant contends that the Deputy President made several errors in relation to the mismanagement by Armaguard of his leave applications. These contended errors are considered below.
The Appellant argues that the Deputy President failed to take into account that Armaguard promised, in its 9 June 2020 letter, to pay his retrospectively approved leave for the period 9 November 2019 to 13 March 2020 and then failed to make such payment until one month after his termination of employment on 23 October 2021.
The first thing that may be said is that Armaguard did not approve all the leave applications made by the Appellant on 11 March 2020. In fact, the only leave that was approved was that of the application for carers leave from 9 November 2019 to 13 March 2020. This is clear from the 9 June 2020 letter to the Appellant. It nonetheless committed to paying the approved carers leave in the next pay cycle. That did not occur, as conceded by Mr Dickson in his evidence, where he said the following in his witness statement;
“20. My assessment and determinations following reviewing Mr Mangamuri’s correspondence was as follows:
(a) I approved for Mr Mangamuri’s absence between 11 November and 13 March 2020 to be coded as paid carer’s leave;
(b) Mr Mangamuri at that point had 41.3 hours of paid carer’s leave available to him which I intended to pay to him in the pay run commencing 15 June 2020 (only now have I discovered that the 41.3 hours of carer’s leave was not paid to Mr Mangamuri);
…”[50]
It is clear from Mr Dickson’s evidence that at the point of the retrospective approval of the Appellant’s carers leave for the period 11 November 2019 to 13 March 2020, the Appellant only had 41.3 hours of carers leave available, which is a little over a week. The fact that he only had 41.3 hours of carers leave available does not appear to have been the subject of any communication between Mr Dickson and the Appellant. In any case, the payment of that carers leave was in fact delayed until after the Appellant’s dismissal according to Mr Dickson’s evidence.
While the concession by Mr Dickson as to the timing of the payment of the carers leave was in evidence, the Deputy President appears to have proceeded on the basis that carers leave was approved (belatedly) and paid to the Appellant in June 2020 for the period 11 November 2019 to 13 March 2020. That is evident by his comments at [43] of the Decision where the following was said;
“[43] On 2 March 2020, the Applicant made clear that he could now return to Australia because he had made arrangements for his father’s ongoing care. This was well before any international travel restrictions to Australia were imposed. In truth, it seems likely from the Applicant’s correspondence of 2 March 2020 that he lacked the funds to make arrangements to travel to Australia, but this is hardly the Respondent’s responsibility. The Applicant could and should have applied for further leave when the original period of leave had expired, but he did not. In any event in that correspondence the Applicant says that once Ms De Luca “clear[s] the application forms and make the payments, [he] can book [his] tickets.” But there is no evidence that once the leave was later approved and paid, the Applicant took any step to book any flights to return to Australia.”[51] (our emphasis added)
Further on in the Decision, the Deputy President also relevantly stated as follows;
“[66] Third, the applicant points to the following matters:
………
·He says he was “stuck” in Hyderabad because the Respondent had initially refused his retrospective leave application. In truth, the Applicant was “stuck” because of a combination of bad decisions he made. He put his head in the sand after his leave had concluded on 7 November 2020 and did not apply for further leave immediately. He subsequently did so only after he was asked to explain his unauthorised absence. Moreover, his decision to remain in Hyderabad after early March 2020 meant that he was later confronted with the consequences of travel restrictions imposed. That the Applicant may have lacked the funds to return at that time is, as I have already noted, not a matter for which the employer can be held responsible. Moreover, the Respondent subsequently approved and paid the Applicant for the leave he had earlier claimed. There is no evidence that upon the receipt of these funds the Applicant took any step to attempt to return to Australia to resume his job. This was despite his assurances in correspondence of 2 March 2020 that upon receiving payment he would do so. This matter does not weigh in his favour.
…”[52](our emphasis added)
The Deputy President’s belief that the Appellant was paid the retrospectively approved leave for the period 11 November 2019 to 13 March 2020 in June 2020 appears to us to be in error. While we have identified error we do not regard the error as a significant or appealable error for the following reasons.
Firstly, the error does not undermine the Deputy President’s findings that the Appellant ought to have applied for leave when his originally approved leave expired on 7 November 2019, that the Appellant could have returned to Australia in early March 2020 when the caring responsibilities for his father eased and that his financial position was not of Armaguard’s making.
Secondly, the error does not disturb the Deputy President’s finding as to there being a valid reason for the Appellant’s dismissal. That is, at the date of his dismissal the Appellant had been absent from work without approval of any leave (paid or unpaid) for a significant period and was not ready, willing or able to attend work.
Finally, the Deputy President’s belief as to the payment of the retrospectively approved carers leave appears to have led him to place no weight (in favour of the Appellant’s case) on the issue of the retrospective leave approval and payment at [66] of the Decision in his consideration of s.387(h) criteria. If weight were to have been placed on that issue in the Appellant’s favour, we do not regard the issue of the delayed carers leave payment as being of such significance as to weigh so heavily in the Appellant’s favour as would have displaced the other matters favouring a conclusion that he was not unfairly dismissed. That is because of the other substantive matters determined by the Deputy President including the valid reason for the Appellant’s dismissal and the matters referred to above at [34], that of the Appellant’s failure to apply for leave when his original leave expired, the Appellant’s failure to return to Australia in March 2020 when he could, and the fact that ultimately the Appellant’s financial position was (largely) a matter of his own making, not of Armaguard’s. In making our assessment of this aspect, we have also had regard to the extent of carer’s leave payments involved and the likely impact upon the Appellant’s circumstances.
The Appellant further submits that the Deputy President failed to take into account Armaguard’s mismanagement of his leave applications, first rejecting then subsequently approving those applications is also rejected. The Deputy President was clearly alive to the issue having stated at [20] of the Decision that the delayed response by Armaguard on 9 June 2020 to the Appellant’s 2 March 2020 leave application was “unsatisfactory”. He also noted at [22] that Armaguard retrospectively approved leave for the period 11 November 2019 to 13 March 2020. While the Appellant makes much of the delayed approval of leave, it is clear that the Deputy President took the matter into account given the observations made by him at [42] of the Decision when he said;
“[42] First, he suggests that his dismissal was unfair because the Respondent failed or failed to promptly deal with his applications for leave. These leave applications were retrospectively submitted on 11 February 2020, in circumstances where his approved leave had concluded on 7 November 2019. He says he did not realise his leave had concluded until 16 January 2020, a proposition I do not accept given the leave application he signed on 25 July 2019 which was for a period of 20 weeks commencing on 8 May 2019. The truth of the matter is, as the Applicant said in his evidence, he “just kept quiet because of [his] situation at home[and] [he] assumed the leave lasts till 15 March 2020 approximately and busy with caring work to [his] ill father”. Moreover, although some retrospective leave was later approved, Ms De Luca’s email of 24 February 2020 made clear that the Applicant’s “retrospective leave requests have not been granted”. In any event the need for further leave to care for his father had dissipated since on the Applicant’s evidence he had made arrangements for others to provide the necessary care.”[53]
It is clear that the Deputy President considered and weighed the issue of the delayed approval of the Appellant’s leave application. The weight to be placed on it, if any, was a matter for the exercise of discretion by the Deputy President’s and no miscarriage of that discretion is revealed.
It is also said by the Appellant that the Deputy President failed to take into account that Armaguard’s delayed approval of the Appellant’s requested leave, and the delayed payment for such leave, meant that the Appellant was unable to afford a ticket to return to Australia. Contrary to the submission, it is clear that the Deputy President was alive to the financial constraints faced by the Appellant. That is obvious from the Deputy President’s statement at [43] of the Decision when he said as follows;
“[43]… In truth, it seems likely from the Applicant’s correspondence of 2 March 2020 that he lacked the funds to make arrangements to travel to Australia, but this is hardly the Respondent’s responsibility. The Applicant could and should have applied for further leave when the original period of leave had expired, but he did not. …[54]
It cannot be said that the Deputy President failed to take the Appellant’s financial situation into account. He clearly considered the point and concluded, not unreasonably, that the Appellant’s financial circumstances were not of Armaguard’s making, particularly in circumstances where the Appellant failed to make an application for leave when his originally approved period of leave expired in November 2019. No error is disclosed.
Adverse action claim
Turning to the alleged failure of the Deputy President to take into account the adverse action alleged to have been taken against the Appellant by Armaguard after the Appellant had raised workplace issues with Armaguard and sought the contact details of Mr Peter Fox. The Deputy President dealt with this issue at [46] of the Decision where he said as follows;
“[48] Sixth, the Applicant says that the Respondent chose to terminate his employment because he was requesting Mr Fox’s email address in order to raise workplace issues with him. This submission is also devoid of merit. There is no evidentiary foundation for the submission nor is there any evidentiary foundation for the workplace issues identified by him as being issues of genuine concern. Moreover, the Applicant appears to have belatedly raised these workplace issues as a barrier to his return and had not made mention of any of these issues in his earlier correspondence to the Respondent. The issues appear to me to be proffered by the Applicant as a distraction from the issue that was being raised by the Respondent. But even if there was substance to some of the matters he wished to raise, there are appropriate mechanisms available under the applicable industrial instrument or to the extent relevant, the applicable Occupational Health & Safety law. But the mere existence of such issues presented no barrier to his return to work.”[55]
We were not taken on appeal to any material that was before the Deputy President that would aid the Appellant’s argument of error. The first point at which the Appellant appears to have raised the alleged workplace issues as a barrier to his return to work was in his email to Mr Dickson on 31 August 2021. At no point prior to that date can we identify any concerns having been raised by the Appellant regarding the alleged workplace issues that would have prevented his return to work. Rather, the barriers were variously said by the Appellant to include his caring responsibilities, Australian border restrictions, available hours of work and his financial capacity to buy a return ticket. We agree with the Deputy President that the timing of the alleged workplace issues being raised supports an inference of it being a tactic of the Appellant to distract from the matters raised by Mr Dickson in his 18 August 2021 correspondence to the Appellant.
We agree with the Deputy President that there was no probative evidence to support the claim that the Appellant had been subject to adverse action. We also agree that even if the Appellant’s argument as to the existence of workplace issues was taken at its highest and accepted, the alleged issues were not a barrier to the Appellant’s return to Australia and to work. In these circumstances, no error of the Deputy President is disclosed.
Date of Appellant’s return to Australia
The Appellant submits that the Deputy President erred when he found at [31] of the Decision that the Appellant had not provided a “fixed date for his return”. It is entirely unclear to us on what basis the Appellant says such finding was in error. The Appellant’s email to Mr Dickson on 15 September 2021 followed earlier correspondence from Mr Dickson on 18 August 2021 in which the Appellant had been requested to confirm his intended return to work date. Further correspondence sent by Mr Dickson on 1 September 2021 invited further information from the Appellant relating to his return to Australia and ability to work. Self-evidently, the Appellant’s response on 15 September 2021 did not provide a “fixed date of return”. It stated that “…I will be returning to my job when the International borders open and I assume it will be around mid of January 2022…”.
Nor do we accept that the Deputy President was in error by not accepting the Appellant’s claim that if Armaguard was unhappy with the Appellant’s estimated mid-January 2022 return date then it should have proposed an alternative date. It ought to have been abundantly clear to the Appellant from various correspondence sent to him by Armaguard during 2020 and 2021 that he was required to return to work and was repeatedly requested to specify a return date. The Appellant’s persistence in running the argument on appeal that Armaguard somehow bore the responsibility of proposing an alternate date for the Appellant’s return ignores the fundamental fact that he had been absent on unapproved leave for an extended period and had been unable to identify when he would be returning, if at all. It is telling that as at the date of hearing before the Deputy President and before us on appeal, the Appellant remained in India. The conclusion drawn by the Deputy President that a specific date of return had not been provided by the Appellant was clearly open to him. No error is disclosed.
Exceptional circumstances of the pandemic
We finally turn to the Appellant’s submission that the Deputy President failed to take into account the exceptional circumstances of the COVID-19 pandemic and the Appellant’s caring responsibilities in respect of his father which meant that he was unable to provide a specific date of return to Australia. The submission is also rejected for the reasons that follow.
Firstly, the Deputy President was acutely aware of the pandemic and its impact on travel to Australia. That is clear from the introductory paragraph of the Decision when he identified the challenges confronted by Australian citizens and permanent residents seeking to return to Australia after border restrictions were imposed on 20 March 2020. That said, the Deputy President also made clear that the Appellant had the opportunity to return to Australia in early March 2020. The timing of the Appellant’s stated ability to return to Australia is significant in that it was some weeks prior to the Australian border restrictions being imposed on 20 March 2020.
Secondly, the Deputy President well understood that the Appellant had caring responsibilities in respect of his father. That is evident from his detailed recounting of the largely uncontroversial facts. While the caring responsibilities may have been a barrier to the Appellant’s return to Australia in 2019 and early 2020, that barrier was removed as of 2 March 2020 when the Appellant advised Mr Dickson that he had trained someone else up to care for his father and could come back to work. This point was specifically noted by the Deputy President when he relevantly stated at [42] of the Decision; “In any event the need for further leave to care for his father had dissipated since on the Applicant’s evidence he had made arrangements for others to provide the necessary care”.
Finally, while the Deputy President acknowledged that the Appellant had some challenges returning to Australia after border restrictions were imposed on 20 March 2020, he went on to state that those difficulties were largely of the Appellant’s own making arising from decisions he had made including his failure to apply for leave on expiry of the original approved leave in November 2019 and his failure to return to Australia prior to the 20 March 2020 Australian border restrictions being imposed. We agree with the Deputy President.
We are not persuaded that the Deputy President failed to take into account a relevant matter, that being the impact of the pandemic restrictions and the Appellant’s caring responsibilities. No error is disclosed.
Conclusion
Having regard to the above matters and in light of the conclusions reached, we are not satisfied that appealable error has been identified in the Decision. 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 such that guidance from an appellate body is required;
· 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 Commission were disharmonious when compared with other decisions dealing with similar matters.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
S Mangamuri, Appellant.
B Byrne for the Respondent.
Hearing details:
2022
Melbourne, Adelaide, India (by Microsoft Teams):
July 5.
[1] [2022] FWC 763.
[2] Decision at [1]-[2].
[3] Ibid at [5].
[4] Ibid at [6].
[5] Ibid at [7].
[6] Ibid.
[7] Ibid at [9].
[8] Ibid at [11].
[9] Ibid at [12].
[10] Ibid at [14].
[11] Ibid at [15].
[12] Ibid at [16]-[17].
[13] Ibid at [18].
[14] Ibid at [19].
[15] Ibid at [20]-[21].
[16] Ibid at [23]-[24].
[17] Ibid at [25].
[18] Ibid at [27].
[19] Ibid at [29].
[20] Ibid at [30].
[21] Ibid at [31].
[22] Ibid at [32].
[23] Ibid at [42]-[43].
[24] Ibid at [44].
[25] Ibid at [45].
[26] Ibid at [46].
[27] Ibid at [47].
[28] Ibid at [48].
[29] Ibid at [56]-[57].
[30] Ibid at [58].
[31] Ibid at [59].
[32] Ibid at [60]
[33] Ibid at [61]
[34] Ibid at [64]
[35] Ibid at [64]
[36] Ibid at [66]
[37] Ibid at [67]
[38] Ibid at [68]
[39] 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.
[40] See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[41] (2011) 192 FCR 78 at [43].
[42] 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]
[43] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[44] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[45] 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].
[46] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[47] Decision at [66]
[48] Appeal Book at p.35, Transcript of hearing on 31 January 2022 at PN98-PN99, PN109-PN110.
[49] Appeal Book at p.36, Transcript of hearing on 31 January 2022, PN102-PN103.
[50] Appeal Book at p.111, Witness Statement of Stephen Dickson, dated 5 January 2022 at [20].
[51] Decision at [43].
[52] Decision at [66].
[53] Ibid at [42].
[54] Ibid at [43].
[55] Ibid at [48].
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