Stanley Sully v CBMG North Pty Ltd
[2020] FWCFB 4743
•16 SEPTEMBER 2020
| [2020] FWCFB 4743 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Stanley Sully
v
CBMG North Pty Ltd
(C2020/5768)
DEPUTY PRESIDENT DEAN | SYDNEY, 16 SEPTEMBER 2020 |
Appeal against decision [[2020] FWC 3509] of Deputy President Asbury at Brisbane on 3 July 2020 in matter number U2019/13027. Permission to appeal not granted.
[1] Mr Stanley Sully commenced employment with CBMG North Pty Ltd (CBMG) in November 2018 as a casual driver for its car dealer business until he was summarily dismissed on 5 November 2019.
[2] Mr Sully was dismissed for having left a company vehicle unattended in the driveway of a premises which was his temporary residence, following an unscheduled detour by him to that premises (with the question of the location of keys to the vehicle being the subject of particular issue). The vehicle was stolen, together with the loss of the vehicle’s contents including manuals, keys and documents containing private information about customers.
[3] Mr Sully made an application for an unfair dismissal remedy. In a decision issued on 3 July 2020 1 (the Decision), Deputy President Asbury determined that Mr Sully’s dismissal by CBMG was not unfair and dismissed the application.
[4] Mr Sully has now lodged an appeal, for which permission to appeal is required, against the Decision. The question of whether permission to appeal should be granted is the only matter before us.
[5] On the basis of our consideration that Mr Sully’s application for permission to appeal could adequately be determined without oral submissions, and with the consent of the parties, the appeal has been conducted and determined on the papers pursuant to s 607(1) of the Act.
The Decision
[6] In the Decision, the Deputy President gave consideration to each of the matters relevant under s.387 of the Fair Work Act 2009 (the Act) in reaching a determination as to whether Mr Sully’s dismissal was harsh, unjust or unreasonable.
[7] In dealing with the question of whether there was a valid reason (s.387(a)), the Deputy President came to the following conclusions:
“[56] I am satisfied and find that there was a valid reason for the Applicant’s dismissal. In this regard, I accept – despite the lack of specific evidence about the contents of the stolen vehicle and in particular the contents of the mail bags – that the Applicant was carrying manuals and keys for vehicles which would have been inconvenient to replace. Further, I am satisfied that the Applicant was carrying confidential financial information relating to the Respondent’s customers and that this was an extremely serious matter. I am satisfied that the Applicant knew that these were the items that he was transporting in the vehicle and that he was required to take reasonable care of those items and to ensure that they were safely transported.
[57] I have also concluded that it is more probable than not that the Applicant left the keys of the vehicle in the ignition when he went into the house at Bonython Street, and that this directly resulted in the vehicle being stolen. I have further concluded that the Applicant was he changed his version of events and maintained that he took the keys inside with him and left them on a table.
[58] I did not find the Applicant’s evidence about why he changed his version of events to be credible. The Applicant wrote and signed two contemporaneous reports where he stated that he left the keys in the ignition of the vehicle. Mr Finister-Hinton and Ms Lewis confirm that the Applicant said that this was the case in the meeting on 5 November 2019. Further, in the email sent to Ms Lewis by the Applicant on 5 November, which was the Applicant’s first communication with the Respondent following the dismissal, the Applicant did not seek to withdraw his earlier statements about leaving the keys in the ignition of the vehicle. Instead, the Applicant waited until 8 November to withdraw this statement. Further, the Applicant waited until 21 November – the day that he filed his unfair dismissal application – to email the Police officer to whom he had made the original complaint and withdraw his statement that he had left the keys in the ignition of the vehicle.
[59] After considering the Applicant’s contemporaneous statements about this matter, his subsequent denials and his oral evidence, I find it more probable than not that he did leave the keys in the ignition of the vehicle and that this increased the seriousness of his conduct as did his subsequent attempts to change his story on this point.
[60] The Applicant’s conduct was careless and negligent and exposed the Respondent to damage with its customers by compromising their private financial information. The Applicant knew the sensitivity of the material he was carrying in the vehicle and should not have left it in a driveway with the keys in the ignition. I am also of the view that although it was not relied on as a reason for dismissal, the Applicant’s driving record, in combination with the theft of the vehicle was a valid reason for dismissal.”
[8] Having found that there was a valid reason for the dismissal, the Deputy President went on to address the other factors required by s.387 to be considered and concluded as follows:
• Mr Sully was not notified of the reason for his dismissal before the decision to dismiss him was made (s.387(b));
• Mr Sully was not given a reasonable opportunity to respond to the allegations leading to his dismissal (s.387(c));
• there was no refusal by CBMG to allow Mr Sully to have a support person present at the meeting to discuss the incident (s.387(d));
• s.387(e) was irrelevant to a consideration of this matter; and
• ss.387(f) and (g) were considered to be neutral factors.
[9] The Deputy President considered Mr Sully’s assertion of differential treatment compared to that given to other employees under s.387(h). In that regard, the Deputy President rejected that the matters involving other employees raised by Mr Sully were proper comparators to the conduct in which he engaged. The Deputy President considered Mr Sully’s conduct “went beyond an oversight and was negligent” and “had significant implications for the Respondent and the financial security of its customers”.
[10] The Deputy President also rejected Mr Sully’s claim that CBMG used the incident as an excuse to “get rid of him” because of various matters he raised earlier including underpayment, workplace health and safety issues, and a complaint he made about an alleged sexual assault.
[11] Although the Deputy President found that there was some procedural unfairness with respect to the manner in which the dismissal was effected by CBMG, she did not consider the deficiency, in the circumstances of the matter, was of such significance as to have resulted in Mr Sully’s dismissal being unfair.
[12] Having considered all the matters in s.387 of the Act, the Deputy President was satisfied that Mr Sully’s dismissal was not harsh, unjust or unreasonable.
Grounds of Appeal
[13] In the Notice of Appeal, Mr Sully identified the following as the principal grounds of the appeal (reproduced in lower case):
“The decision hangs on in reality one disputed fact. That the keys to the company utility were in the ignition at the time of the theft. The Deputy President has dismissed the case and if you look at the evidence of other employees who have not been dismissed for dangerous practises (drinking and driving company vehicles), allowing company vehicles to lapse in registration with no insurance and a far greater danger to the public, this decision is unsound and unfair.”
[14] In terms of the public interest, Mr Sully relied on what he said was a “comprehensive case of the company CBMG North Pty Ltd breaking traffic laws, providing an unsafe workplace, misrepresenting facts and applying dismissal of employees on an unfair basis”. Accordingly, Mr Sully argued, it was in the public interest that CBMG does not escape an unfair, unjust and unreasonable decision without a signal to change their behaviour.
Submissions
[15] Mr Sully submitted that the basis of this appeal was the overall unfairness of the Decision. He argued that despite strong evidence to the contrary, CBMG applied bias to its dismissal policy and behaved in an unprofessional manner. He argued that the Deputy President ignored this evidence.
[16] Mr Sully contended that it was immaterial whether the keys were left in the vehicle, and the vehicle was stolen as a result. He made comparisons to conduct of other employees who were said to have driven a company vehicle while over the alcohol limit, and had allowed vehicle registrations to have lapsed while still being driven. Mr Sully submitted the Decision was unsound, because crucial evidence had been ignored or overlooked by the Deputy President.
[17] Mr Sully asserted he had demonstrated in the hearing before the Deputy President that CBMG ignored traffic laws and applied its dismissal policy unevenly with significant bias; and that the manner in which CBMG conducts its business is not in the interests of Queensland.
[18] Mr Sully also submitted that by making “a small financial offer” to settle the matter in December 2019 CBMG had admitted liability.
Consideration
[19] Section 400(1) of the Act provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may be made only on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, 2 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.3 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[20] The task of assessing whether the public interest test is met is a discretionary one, involving a broad value judgment. 4 In GlaxoSmithKline Australia Pty Ltd v Makin5, 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 the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[21] 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. 7 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.8
[22] 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.
[23] Having given careful consideration to all the matters put by Mr Sully, and reading the Decision as a whole, we are not satisfied that the matters raised by Mr Sully demonstrate an arguable case of appealable error in connection with the question of permission to appeal.
[24] In our view, the Decision contains a detailed and comprehensive consideration of the evidence, submissions and the application of the Act. The Deputy President has properly addressed each of the matters in s.387 that she was required to consider, and made findings based on the evidence before her. In particular, the Deputy President considered Mr Sully’s arguments around differential treatment and came to the view that the matters involving other employees were not proper comparators with the conduct in which he had engaged. Mr Sully has not pointed to any part of the evidence that would cause us to conclude that the findings made by the Deputy President were not reasonably open to her.
[25] It is clear Mr Sully is dissatisfied with the outcome of his unfair dismissal application and disagrees with the conclusions reached by the Deputy President. However, that disagreement cannot be the basis of a successful permission to appeal application. An arguable case of appealable error needs to be shown and/or the public interest must be enlivened. The appeal process is not intended to provide an avenue for an unsuccessful party to rerun the case simply because that party is dissatisfied with the outcome at first instance.
[26] We are not persuaded that Mr Sully has made out an arguable case for any significant error of fact on the part of the Deputy President.
[27] Further, we have considered whether Mr Sully’s appeal attracts the public interest, and we are not satisfied that:
a. there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
b. the appeal raises issues of importance and/or general application;
c. the Decision manifests an injustice, or the result is counter intuitive; or
d. the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
[28] For these reasons, we decline to grant permission to appeal.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR722516>
1 [2020] FWC 3509.
2 (2011) 192 FCR 78.
3 Ibid at [43].
4 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] FCAFC 54 at[44]-[46].
5 (2010) 197 IR 266.
6 Ibid at [27].
7 Wan v AIRC [2001] FCA 1803 at [30].
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
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