State of Victoria, Victoria Police v Milka Bateson
[2022] FWC 2655
•4 OCTOBER 2022
| [2022] FWC 2655 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
State of Victoria, Victoria Police
v
Milka Bateson
(C2022/6549)
| DEPUTY PRESIDENT BELL | MELBOURNE, 4 OCTOBER 2022 |
Appeal against decision [2022] FWC 2289 of Commissioner Bissett at Melbourne on 12 September 2022 in matter number U2022/1739 – stay application.
On 12 September 2022, Commissioner Bissett issued a decision[1] (Decision) and published orders[2] (Orders), in which the applicant before her (Ms Bateson, now the respondent before me) was found to have been unfairly dismissed by the appellant (Victoria Police). Ms Bateson was awarded compensation for lost wages and an order for her reinstatement was made. Reinstatement was required to have occurred within 7 days of the Order, namely by 19 September 2022.
On 27 September 2022, Victoria Police filed a Notice of Appeal and made an application for a stay pursuant to s.606 of the Fair Work Act 2009 (the Act). The stay application was listed for hearing before me on 3 October 2022. This decision concerns the stay application.
The principles relating to a stay were largely uncontroversial although, as is frequently the case, the application of them was in issue. Permission was granted for both parties to be represented at the stay application. Each party filed brief supporting evidence directed at the question of a stay and submissions. Neither party objected to the other party’s material being filed and cross-examination was not required.
Applicable principles
The principles applicable to s.606 of the Act - summarised by Ross VP (as the President then was) and cited with approved by the Full Bench in P Edghill v Kellow-Falkiner Motors Pty Ltd[3] – are as follows (citations omitted):
“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.
[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”
In assessing the criteria that there is an arguable case with some reasonable prospects of success (for leave and merits), the assessment is typically on a preliminary basis and without the benefit or opportunity of full consideration of the material before the Commission.[4]
The matter before me is an appeal against an unfair dismissal remedy. Unlike appeals against other provisions in the Act, the Commission must not grant permission to appeal against a decision under Part 3-2 of the Act unless it considers it in the public interest to do so. Generally, permission to appeal will not be granted in the absence of an identifiable appealable error.
Consideration
Before turning to my assessment of the above matter, I would make a brief summary of the matter below. The matter before the Commissioner involved unusual circumstances. The Commissioner provided detailed factual findings and consideration and my extremely brief summary does not give the Decision justice. A key issue of conduct concerned a telephone call made Ms Bateson to the person identified as ‘XY’, in which Ms Bateson falsely purported to be a journalist from The Age newspaper. There were factual disputes relating to why that call was made and what was said, which the Commissioner made careful factual findings upon.
Commissioner Bissett concluded that there was a valid reason for the dismissal. Among other matter, I note paragraph [86] of the Decision which states:
“[86] However, in misleading XY – by saying she was from a newspaper – the Applicant engaged in conduct that was a blatant breach of her professional and ethical values in employment. It was highly unprofessional and lacked integrity. Further, it was a breach of the requirement to demonstrate honesty, build trust and model behaviours on public sector values.”
It is trite to observe that a finding of a valid reason is just one element of the overall task required by s.387 of the Act. The Commissioner balanced against that finding her overall finding that, in all the circumstances, the dismissal was harsh, unjust and unreasonable. The Commissioner had regard to, among other matters, the employees length of service (since 1999), the economic impact of the dismissal, Ms Bateson’s sincere remorse, the Appellant’s delay in conducting the investigation, and the unusual confluence of the personal and work circumstances that led to the events in question. The Commissioner had regard to aspects of the Appellant’s allegations that were not made out, and considered whether or not dismissal was disproportionate to the misconduct engaged in.
There are two grounds of appeal, albeit the first contains five sub-categories. Ground 1 of the appeal is directed at the merits of the substantive decision. Ground 2 is additionally directed at the conclusion that reinstatement was an appropriate form of relief.
Before me, however, the stay of the particular orders sought by Victoria Police was primarily advanced on the question of reinstatement. On that basis, and subject to balance of convenience, it would be sufficient if Victoria Police was able to demonstrate either an arguable case with some reasonable prospects of success upon the substantive question of whether the dismissal was unfair (in which case no compensation or reinstatement is applicable) or specifically on the ground of reinstatement.
As formulated in the notice of appeal, a number of the sub grounds of appeal were directed at matters that the Commissioner purportedly “failed to take into account”. A failure to take into account a material consideration is, of course, a recognised basis for an appealable error.[5] Ms Bateson’s counsel – with some force – contended that the Commissioner did take the matters complained about into account and that, in doing so, she simply found against Victoria Police in an exercise of her discretion.
Ground 1.1 of the notice of appeal lists a number of specific matters but it is, however, expressed somewhat more generally (and somewhat ambiguously) in that it asserts that the “Commission failed to take into account the objective seriousness of the Applicant’s misconduct, including its potential to undermine community confidence in the integrity of Victoria Police…” (my emphasis). Senior Counsel for Victoria Police contended that a particular complaint about the Decision was that it failed to properly consider (what I call) the “community confidence” limb following the underlined part in the preceding extract.
The Appellant was not appearing to rely, for either of its two grounds of appeal, upon the principle stated in House v The King[6], which states that if a decision “upon the facts … is unreasonable or plainly unjust”, there may be an appealable error even if the exact nature may not be discoverable. Rather, Victoria Police contends that the Commissioner incorrectly “characterised” the overall nature of the conduct. In reliance on that ground, the Appellant relied upon (among other authorities) Illawara Coal Holdings Pty Ltd T/A South 32 v Matthew Gosek[2018] FWCFB 749, which stated at [101] that the “proper characterisation of the conduct is a critical step in a finding of a valid reason for dismissal” (my emphasis). As the “community confidence” concern would appear to encompass (on Victoria Police’s position) the ability for Ms Bateson to give credible expert testimony in a court where she might be subject to cross-examination[7], the alleged “proper characterisation” of the conduct, the alleged error implies the characterisation of the conduct understated its true impact.
Ground 1.2 invokes somewhat different issues. It is directed at what is said to be a factual finding inconsistent with a later conclusion in relation to Ms Bateson’s “purpose” in making the impugned telephone call. At [59], the Commissioner found that “the Applicant also wanted to confront XY as to why XY had made accusations against her husband but this does not mean the Applicant sought to gain information from XY to support the Applicant’s husband’s case” (the underlined parts are relied upon by the Appellant). This finding is said to be inconsistent with a later finding at [79] that the “purpose of the call was not to gain information from XY in relation to her husband’s case.”
The evidence does not indicate that Ms Bateson, in fact, asked XY the question “why” XY had made accusations against her husband. However, if Ms Bateson did so, I consider it reasonably open that the answer to that question would likely entail subject matter “in relation to” her husband’s case. The significance of the disconformity – if it be one on a proper consideration of all the material – is a matter that will be ultimately developed by the parties.
On my preliminary review on the material before me, I am satisfied that ground 1.1 of the notice appeal is arguable with some reasonable prospects of success. In doing so, I have had regard to the question of reinstatement in particular. It is unnecessary that I elaborate further on the other matters.
In relation to balance of convenience concerning the orders for reinstatement, there has been some correspondence between the parties as to arrangements that might be acceptable to each of them, short of reinstatement. The material filed by the parties each addressed this question. The material filed by Victoria Police raised two particular matters that I consider weigh more heavily in favour of a stay of reinstatement pending determination of the appeal. The first is that, if the appeal is successful, work being undertaken by Ms Bateson would need to be reassigned, with some ensuing disruption. The second is a concerned about the potential for Ms Bateson to perform court-work and how that might be impacted (as to which, I touched on this briefly above).
In relation to balance of convenience for the compensation order, I consider that the balance of convenience is in Ms Bateson’s favour in relation to order 4 of the Orders, which ordered past compensation for lost earnings in the amount of eight weeks. Ms Bateson’s material quantifies that amount, excluding superannuation, as being in the sum of $15,397.96 gross. Victoria Police did not challenge Ms Bateson’s calculations. As I will not make a stay in respect of Order 4, it remains payable forthwith.
Senior Counsel for Victoria Police, by instructions that he was evidently receiving for the first time at the bar table, indicated Victoria Police might not be able to pay that amount for a further seven days. I do not accept that contention and I note that in correspondence dated 27 September 2022, Victoria Police was proposing payment of that very sum into a Victoria Police Commonwealth Bank account, which would be paid “within 7 days” (i.e. by 3 October 2022). In circumstances where the Commissioner dedicated nearly two pages of her Decision to the “time taken” for a decision to dismiss Ms Bateson to be made – including an unexplained delay of nearly seven months before Ms Bateson was informed of the investigation against her – I consider that Victoria Police must pay that sum by no later than 5:00pm AEDT, Friday 7 October 2022. If Victoria Police is successful in its appeal, Ms Bateson will be required to repay these amounts within 30 days.
The orders I propose contain a requirement for Victoria Police to pay amounts equivalent to Ms Bateson’s post-tax fortnightly wages into an interest-bearing account. I have also made provision for confirmation of those payments to be made. While those payments are intended to reflect the wages Ms Bateson would have received upon her reinstatement, they do not include superannuation. If Victoria Police is successful with its appeal (or at least in respect of reinstatement), those payments will revert to Victoria Police. If Victoria Police is wholly unsuccessful with its appeal, then those payments would be released to Ms Bateson and, if necessary, subject to any adjustments to include amounts that Ms Bateson would have received by way of wages if Order 1 of the Orders had not been stayed. Examples of adjustments I have in mind include superannuation and, possibly, pay increases that might have automatically occurred by operation of the enterprise agreement Ms Bateson is covered by.
Ms Bateson sought an inclusion to any orders I make a note requiring Victoria Police to proffer an undertaking in the following terms: “Upon Victoria Police’s undertaking to pay compensation to Ms Bateson for any loss she suffers as a result of the making of these orders should the appeal not succeed, in an amount to be determined by the Commission.” Victoria Police opposed the proposed inclusion. The practical effect of the stay order is to act as a stay on reinstatement and the ability to earn wages. My orders will provide for adjustments for wages and there remains liberty to apply should there be disputations concerning any adjustments. I do not consider it appropriate to require such an undertaking that might extend to other unarticulated heads of loss. It might be observed that the same kinds of loss would be suffered if an applicant’s unfair dismissal application was dismissed but was later overturned on appeal. Putting aside the practical difficulty in assessing those matters, the operation of a stay is for a relatively short period pending determination of the application for appeal and other heads of loss – such as shock, distress or humiliation – are themselves excluded from the ordinary calculations of compensation for past earnings under the Act: s.392(3). Such amounts are also capped: s.392(5). I do not consider it appropriate to expand those heads of loss by way of undertakings proffered by way of an application for stay pending appeal.
Disposition
As Ms Bateson was (by prior discussion between the parties) due to return to work on 4 October 2022, I made an order orally on transcript at the Stay hearing, after discussion with the parties, which formally stayed Orders 1 – 3 upon the making of my oral order. An order[8] is issued with this decision, which for avoidance of any future confusion, contains a restated written record of my oral order staying Orders 1 – 3, in addition to the other matters provided for.
DEPUTY PRESIDENT
Appearances:
R Dalton KC and E Latif of Counsel for the Appellant
J Fetter of Counsel for the Respondent
Hearing details:
2022.
Melbourne (by video via Microsoft Teams):
October 3.
[1] [2022] FWC 2289.
[2] PR745262.
[3] P Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 786.
[4] Appeal by Supreme Caravans Pty Ltd [2013] FWC 4766.
[5] House v The King (1936) 55 CLR 499 at 505.
[6] Ibid.
[7] And see Freckleon and Selby, Expert Evidence Law, Practice, Procedure and Advocacy, 5th ed, 2013, at 1128 (and Chapter 12.15 generally) to the topics that the authors identify as subjects for cross-examination on fingerprints and associated areas.
[8] PR746430.
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