Tahidul Alam v Lowie's Garage Pty Ltd T/A Ideal Automotive
[2020] FWCFB 5418
•14 OCTOBER 2020
| [2020] FWCFB 5418 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Tahidul Alam
v
Lowie’s Garage Pty Ltd T/A Ideal Automotive
(C2020/6616)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 14 OCTOBER 2020 |
Appeal against decision [2020] FWC 4052 of Commissioner McKenna at Sydney on 7 August 2020 in matter number U2020/1883 – application for unfair dismissal remedy – whether dismissal was unfair – permission to appeal refused
[1] Mr Tahidul Alam has applied for permission to appeal and has appealed against a decision of Commissioner McKenna made on 7 August 2020 1, in which the Commissioner dismissed his application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act), having concluded his dismissal was consistent with the Small Business Fair Dismissal Code (the Code). Mr Alam’s appeal was listed for hearing in respect of permission to appeal only and with the consent of the parties has been determined on the papers.
BACKGROUND
[2] The following matters of background may be discerned from the Commissioner’s decision:
• Mr Alam became an employee of Lowie’s Garage Pty Ltd trading as Ideal Automotive (Ideal Automotive) on 1 May 2017 and was given two weeks’ notice of termination commencing 20 January 2020. Mr Alam’s employment with Ideal Automotive was as a “Senior Mechanic and Office Manager”.
• In addition to being an employee of the business, Mr Alam was also a shareholder from 2 July 2018. The majority shareholder and sole director of the business is Steven Lo.
• Ideal Automotive is a small business, as that term is defined in the Act, employing four people at the time of Mr Alam’s dismissal. 2 As a consequence the Code has application to the dismissal.
• At some time before the dismissal the parties’ business relationship became fractious and a commercial or shareholder dispute emerged.
• Mr Alam was informed he was dismissed in a letter which set out a number of allegations of misconduct, with Commissioner McKenna’s decision summarising those allegations in the following manner:
“[6] The letter advising of the dismissal relevantly alleged (among other allegations) the following matters:
• Misappropriation or alternatively unauthorised payments of the respondent’s money, without prior notification or authorisation by Mr Lo concerning:
- a payment of $450 to the applicant’s private lawyer;
- a payment by the applicant to himself of $2,370; and
- the removal of $45,000 from the company’s account for a purported deposit on the purchase of property, which had not occurred, and the failure to return that money on demand.
• Breaches of clause 8 (Obligations) of the employment contract, relevantly including among other alleged matters, the applicant approaching employees and informing them of his concerns as to the future of the business and asking them to leave the company to work with the applicant.
[7] The letter advising of the termination addressed a range of other matters, including, but not limited to, matters concerning company takeover and the shareholder agreement”
[3] A dismissal which is consistent with the Code is not an unfair dismissal. 3 It is to be noted that a dismissal by a small business of an employee without notice or warning is consistent with the Code “when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”. The Code was the subject of detailed consideration by the Full Bench in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services.4 Relevantly the Full Bench found that the summary dismissal section of the Code applies to dismissals without notice on the ground of serious misconduct as that term is defined in reg.1.07 of the Fair Work Regulations 2009 and that insofar as the Code requires the employer to have “reasonable grounds”, the relevant belief is to be determined objectively.5 In such matters the Commission does not need to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair.6
[4] In the proceedings before the Commissioner, Ideal Automotive relied upon consistency with the Code for its dismissal of Mr Alam, with the Commissioner finding there were two matters of misconduct on his part in respect of which Ideal Automotive was entitled on reasonable grounds to believe the misconduct was sufficiently serious to justify immediate dismissal. In making her findings on whether Mr Alam’s dismissal was consistent with the Code, the Commissioner considered not only the terms of the Code, but also whether the employer’s belief was reasonably held. 7
[5] On the potential matters of misconduct, the Commissioner found there was uncontested evidence that Mr Alam had retained $2,370 of money paid to the company and that he had inappropriately spoken with another employee, Mr Burgess. On those two matters the Commissioner found:
• There was “common ground” that Mr Alam “in the course of his employment” received money from a client of the business in relation to goods and/or services that had been provided by the business and that “the applicant explained in his oral evidence that he took/kept $2,370 of that money for himself “against the investment return” (i.e. under the shareholder agreement)”. 8 After noting that Mr Alam proceeded in his evidence to assume he had an unquestionable entitlement to the money as a shareholder she found that the retention of the money “was, objectively considered within the relationship of an employer and its employee, a matter of serious misconduct” and that Mr Alam had no entitlement as an employee to retain for himself these funds.9
• Mr Alam had approached Mr Burgess in order “to air concerns about the business and to seek to have him depart his employment with the respondent potentially so as to work elsewhere in a competitor business or a proposed competitor business”.
[6] The Commissioner found that Mr Lo had objective reasonable grounds for his belief in relation to these two matters, that Mr Alam’s conduct constituted serious misconduct and thereby that his dismissal was consistent with the Code and not an unfair dismissal. 10
[7] Because of her finding of misconduct in relation to the retention of $2,370 the Commissioner did not consider further the claim Mr Alam had used company funds to make a payment of $450 to his private lawyer. She also did not consider the allegation of removal of $45,000 from the company's account, since that matter was not pressed in the proceedings before her.
APPEAL PRINCIPLES
[8] An appeal under s.604 of the Act is by way of rehearing, however the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 11 An appeal may only be made with the permission of the Commission. This appeal is one to which s.400 of the Act applies. 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.”
[9] In Coal & Allied Mining Services Pty Ltd v Lawler and others, 12 the Full Court of the Federal Court characterised the test under s.400 as ‘stringent’.
[10] The fact that the Member at first instance has made an error is not necessarily a sufficient basis for the grant of permission to appeal in the public interest. 13 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.14 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench 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.” 15
[11] 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. 16 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
CONSIDERATION
[12] Mr Alam’s notice of appeal asserts three errors of fact on the part of the Commissioner:
• The retention by him of $2,370 is a matter of a shareholders’ dispute and is not within the Commission’s jurisdiction for consideration in an unfair dismissal matter;
• Her findings about his conversation with Mr Burgess fail to take account of Mr Burgess’ relationship with Mr Lo, with Mr Burgess being predisposed because of that relationship to “always talk in favour of Mr Lo” as well as her findings being inconsistent with the evidence given by Mr Burgess; and
• She failed to find that Mr Lo was seeking an opportunity to push Mr Alam “out as a shareholder of the company”.
[13] Coupled with the Commissioner’s findings on the retained funds and conversation with Mr Burgess, Mr Alam seeks for the Full Bench to take account of several other matters which might inform the reasons for his dismissal. Those matters include being unjustifiably blamed for a burglary; removing documents from his desk and computer; and making false accusations about removing funds.
[14] In seeking permission to appeal, Mr Alam has not addressed the matter of the public interest in his notice of appeal or his submissions.
[15] We have given careful consideration to each of the matters contended by Mr Alam and are not satisfied either that the Commissioner’s decision discloses significant errors of fact or that it is in the public interest to grant permission to appeal.
[16] The Commissioner’s findings in relation to the retention of $2,370 by Mr Alam are consistent with the evidence before her. The conclusion that it was “self-evident” that there was no entitlement for the unilateral retention by an employee of an amount of $2,370 is sound and consistent with the meaning of serious misconduct in reg.1.07.
[17] The evidence of Mr Lo set out that he became aware of the matter through a Whatsapp message from Mr Alam. In his evidence Mr Alam agreed he had kept the amount and with it being “taken against the investment return”. The proposition that consideration of the retained money was outside of the Commission’s jurisdiction is without foundation. The Commissioner did not find the money was owed or not, but that it was misconduct for Mr Alam as an employee to withhold the money from the business. The evidence before the Commission was that Mr Alam received the money in the course of his employment; and no contrary evidence on that subject was led by Mr Alam. Far from the subject being beyond the Commission’s jurisdiction, the Commissioner was required to make findings on the matter of the retained money since it was advanced by Ideal Automotive as one of the reasons for Mr Alam’s dismissal and being a matter causing his dismissal to be consistent with the Code.
[18] The Commissioner’s findings in relation to Mr Burgess were made after she heard his evidence, noting that the entire proceedings before her were by telephone. She formed views of the relative credit of Mr Burgess’ evidence and that of Mr Alam, finding that she preferred and accepted Mr Burgess’ evidence over the Applicant’s. She also preferred Mr Burgess’ evidence to that of another employee, Mr Sagar, who alleged a conspiracy between Mr Burgess and Mr Lo to make false allegations against Mr Alam. The Commissioner was entitled to make those findings of credit and the Full Bench sees no arguable error either in her according of credit to the witnesses, or in her findings about the evidence.
[19] A finding made by a Member at first instance which depends to any substantial degree on the credibility of a witness will usually stand unless the whole of the circumstances compel otherwise such as because the Member has acted on evidence inconsistent with facts incontrovertibly established by the evidence; acted on "glaringly improbable" evidence; or failed to use or misused the advantage they had at first instance enjoyed in hearing the witnesses give evidence. 17 None of these factors are present in this case. We also note that, in finality, the Commissioner noted the context of her findings on the matter of Mr Alam’s conversation with Mr Burgess and that this was a lesser allegation: in and of itself the conversation may not have properly grounded a dismissal on the basis of serious misconduct.18
[20] It was not necessary for the Commissioner to make findings about whether or not Mr Lo may have wished to push out Mr Alam from the business as a shareholder. Her task was to find whether or not Mr Alam’s dismissal was unfair, including whether it was consistent with the Code because Ideal Automotive was a small business employer. Had she found it was not consistent it may have been that the matters advanced by Mr Alam required testing, especially if after finding there had not been serious misconduct on his part it became necessary to consider whether factors other than those stated by the former employer were operative in the reasons for dismissal.
[21] We have also considered whether any aspect of the public interest is enlivened by Mr Alam’s notice of appeal. We are not satisfied that there is a diversity of decisions at first instance for which guidance from a Full Bench is required. The appeal does not raise any issues of importance and/or general application. We are also not persuaded that the Commissioner’s decision manifests an injustice, that the result is counter-intuitive, or that she applied legal principles that were disharmonious when compared with other Commission decisions dealing with similar matters. Nor are we persuaded that there is an arguable case of appealable error in the Commissioner’s decision. As a result, we do not consider it is in the public interest to grant permission to appeal and s.400 of the Act therefore requires us not to do so.
CONCLUSION
[22] Permission to appeal is refused.
DEPUTY PRESIDENT
Determined on the papers
Written submissions
Appellant: 24 September 2020
Printed by authority of the Commonwealth Government Printer
<PR723468>
1 [2020] FWC 4052.
2 See Fair Work Act2009 (Cth), s.23.
3 Ibid, s.385.
4 [2015] FWCFB 5264
5 Ibid at [38] – [40].
6 Ibid at [39].
7 [2020] FWC 4052, [11] – [14], [24] – [27].
8 Ibid, [16]
9 Ibid, [17], [26].
10 Ibid, [27] – [28].
11 See Coal and Allied v AIRC (2000) 203 CLR 194 at [17] .
12 [2011] FCAFC 54 at [43], per Buchanan J, Marshall and Cowdroy JJ concurring.
13 Lawrence v Coal & Allied Mining Services Pty Ltd, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54.
14 O’Sullivan v Farrer [1989], HCA 61, per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, at [69]; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, at [44]-[46].
15 197 IR 266, at [24] – [27].
16 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
17 Curtis v Darwin City Council[2012] FWAFB 802, [83] – [84]; with reference to Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Elitegold Pty Limited v CM Holdings Pty Ltd and Anor [1995] ATPR 40,753 at 47,759.
18 [2020] FWC 4052, [26].
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