Steven Patrick Post v NTI Limited
[2015] FWCFB 6785
•16 OCTOBER 2015
| [2015] FWCFB 6785 [Note: Judicial review of this decision [WAD649/2015] discontinued.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
NTI Limited
(C2015/4978)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 16 OCTOBER 2015 |
Appeal against decision [2015] FWC 3911 of Commissioner Williams at Perth on 9 July 2015 in matter number U2014/14956.
[1] On 9 July 2015 Commissioner Williams issued a decision 1 and order2 dismissing an application made by Mr.Steven Post under s.394 of the Fair Work Act 2009 (‘the Act’). On 30 July 2015 Mr.Post lodged an appeal against the decision and order.
[2] Mr.Post was directed to file and serve an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision. The matter was listed for hearing on 29 September 2015.
[3] As the decision was from an unfair dismissal decision, s.400 applied to the appeal. That section provides:
‘400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’
[4] Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, 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 counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters3.
Submissions
[5] The amended appeal grounds 4 raised a number of alleged issues of public interest, which were spelt out in more detail in a written submission5 and oral submissions. We grant leave to the applicant to amend the appeal grounds. In summary, Mr.Post submitted that there was not sufficient evidence to found the conclusion that Mr.Post had in his involvement with an organisation entitled Transafe breached his contract of employment, and directions from his employer (grounds 1, 2 and 4). It submitted that the Commissioner’s findings that Mr.Post used the employer’s email without authority involved a significant error of fact (ground 4). It submitted that the Commissioner ‘gave no indication’ that he had considered the evidence of witnesses led by Mr.Post, in breach of natural justice and causing a substantial injustice (ground 5). It submitted that allowing the employer to lead evidence with respect to sponsorship by Zurich Financial Services was an error of law (ground 6). It submitted that there were four grounds of appeal which raised significant errors of fact, which triggered the public interest. The errors of fact went to the heart of Mr.Post’s case. Mr.Post submitted that his involvement with Transafe was consistent with his contract of employment, and other matters.
Decision under appeal
[6] The Commissioner addressed each of the required factors in s.387 as follows:
Valid reason
[106] Mr Post ignored directions from NTI’s Managers that his involvement with Transafe must be managed to avoid any conflict between the interests of NTI and the interests he was pursuing on behalf of Transafe and to ensure that he was complying with the obligations in his employment contract. Other than a disclaimer referring to Transafe found in some emails sent by Mr Post the evidence is he took no action to comply with his Managers’ directions in this regard. Instead he continued to pursue his interests in Transafe contrary to the interests of NTI and in ways that were in conflict with his employment obligations to NTI.
[107] Specifically Mr Post used NTI’s email and computer systems for Transafe activities without authority over an extended period.
[108] A significant amount of email traffic relating to Transafe was sent from and to Mr Post’s email address much of that during normal working hours at NTI. Much of this occurred after he had been specifically told by Mr McAleese in May 2014 that he should get a personal email address for Transafe matters and not use NTI’s email.
[109] Emails were sent by Mr Post to NTI clients and other businesses he was dealing with on behalf of NTI encouraging attendance at Transafe events and sending Transafe promotional material.
[110] Mr Post saved on his H drive material relating to Transafe including membership lists, rules of association, business plans, agendas and minutes of meetings in a folder titled “Transafe”.
[111] In pursuing his Transafe interests Mr Post misused confidential NTI information. He sent emails to his personal email address attaching NTI property/confidential information. Mr Post used confidential NTI information to create the Potential Members List with the intention that the list be used by Transafe to assist it recruit new members.
[112] On numerous occasions Mr Post received and accepted meeting invitations by email for Transafe meetings or events, many during normal NTI working hours. He attended a number of these without permission for him to attend to non-NTI business during working hours.
[113] Mr Post, without permission from NTI, attended a full day Transafe conference which he chaired on a normal working day on which he was paid by NTI.
[114] Mr Post’s conduct detailed above gave rise to a conflict between his personal interest as Chairman of Transafe and his duties to his employer NTI.
[115] His actions were all deliberate and wilful and carried out in full knowledge that his employer believed there was a likely conflict of interest between his obligations to NTI as an employee and his involvement with Transafe and that he should take steps to avoid this. This was ongoing conduct over a lengthy period clearly inconsistent with the continuation of the employment contract.
I am satisfied that this conduct was serious misconduct. This conduct was a valid reason for the dismissal of Mr Post.
Notification of the reasons for dismissal
[116] The reasons for which Mr Post was ultimately dismissed were detailed in a series of show cause letters prior to the decision to dismiss him and in the final termination letter.
Opportunity to respond
[117] The series of show cause letters sent to Mr Post provided him with a full opportunity to respond to the reasons for which he was dismissed. Extensions of time to reply were requested and agreed to. Mr Post took up that opportunity to respond and aided by his solicitors provided lengthy and detailed written responses to the show cause letters.
Refusal to allow a support person
[118] There is no evidence that the applicant made a request for a support person at any stage nor in any event that such a request was refused by the respondent.
Size of the respondent’s enterprise and availability of human resource specialists
[119] The respondent is a large employer which has dedicated human resource specialists. The disciplinary process undertaken by the respondent was appropriate in the circumstances and not in any way deficient.
Other relevant factors
[120] Mr Post had been employed for approximately eight years and in terms of his work performance as a Risk Surveyor the respondent had no complaints about him.
Conclusion
[121] There are no factors in this case that support a finding that the dismissal of Mr Post was harsh, unjust or unreasonable. The dismissal of Mr Post was not unfair. Accordingly this application will be dismissed and an order to that effect will now be issued.
Consideration
[7] In relation to the submission that Commissioner Williams did not take account of the evidence of five witnesses, he expressly did so at paragraphs 4-5 of his decision. The evidence given by these witnesses largely related to the good character of Mr.Post, and in our view it was taken into account. There are no grounds for concluding that there was a significant error of fact made as a result of not taking the evidence into account, nor is there any injustice.
[8] In relation to the Commissioner’s findings about the valid reason for termination of employment within s.387(a) of the Act, the appellant submitted that Mr.Post did not breach an employer direction. However, the employer led evidence, including from the State Manager, Western Australia, Mr.McAleese, that the Commissioner accepted amounted to an employer direction in his findings on valid reason 6. We also accept that it was open to Commissioner Williams to conclude that there was a conflict or potential conflict between the interests of Transafe and the employer. We are satisfied there was no error of fact in that conclusion. In relation to allowing the Commission to lead evidence with respect to sponsorship by Zurich Financial Services, the Commissioner found as follows:
‘[93]The evidence is that in more recent times after Mr Post’s dismissal Transafe has entered into a sponsorship arrangement with Zürich insurance who are a competitor of NTI.’
[9] This finding is not referred to in the findings on a valid reason for termination of employment, and there is no reason to believe that it led to any significant error of fact or law in the decision on issues of conflict of interest or any other issue. The Commission in fact specifically noted that the sponsorship was after Mr.Post’s dismissal, which means that it is of lesser relevance if any relevance at all.
[10] There was no significant error in the findings made by the Commissioner. Nor is there any other public interest ground for granting permission to appeal. We dismiss the appeal. An order is contained in PR572504.
DEPUTY PRESIDENT
Appearances:
Mr P Mullally for the applicant
Mr P Lawler for the respondent
Hearing details:
2015
Melbourne, Perth, Brisbane (by video)
29 September
1 [2015] FWC 3911
2 PR568213
3 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266.
4 Exhibit P2
5 Exhibit P1
6 Eg. Exhibit R7, paragraphs 19-27, ‘I advised him that he should not …[use the employer email service for communications for Transafe], and that any emails for Transafe should be set up through a personal email account’, paragraph 22.
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