Terrence McGlashan v MSS Security Pty Limited - [2023] FWCFB 88

[2023] FWCFB 88

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Terrence McGlashan
v

MSS Security Pty Limited

(C2023/116)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY
COMMISSIONER HARPER-GREENWELL

SYDNEY, 9 MAY 2023

Appeal against decision [2022] FWC 3304 of Deputy President Dean at Canberra on 21 December 2022 in matter number U2022/8944 – permission to appeal refused.

Background and the decision under appeal

Mr Terrence McGlashan (the Appellant) has lodged an appeal, for which permission to appeal is required, against a decision[1] of Deputy President Dean issued on 21 December 2022 (the Decision). We heard the parties in relation to the question of whether permission to appeal should be granted on 9 February 2023. At the conclusion of the hearing, we issued our decision in relation to the matter. We refused permission to appeal and stated that we would provide our reasons in due course. Our reasons for the refusal of permission are set out below.

The appeal arises from an unfair dismissal application made by the Appellant under s 394 of the Fair Work Act 2009 (Cth) (FW Act) against MSS Security Pty Limited T/A MSS Security (the Respondent). The Appellant commenced employment with the Respondent in October 2010. Prior to his dismissal, the Appellant was employed in the position of Business Manager – Client Services. During an unrelated investigation, the Respondent became aware of recordings of conversations involving the Appellant which were, in the Respondent’s view, of a highly offensive nature. Following an investigation into the Appellant’s conduct, he was summarily dismissed on 29 August 2022.

In the Decision, the Deputy President considered whether recordings of the Appellant’s internal telephone conversations (the Recordings) were illegally or improperly obtained and whether they could be admitted as evidence in the proceedings. The Deputy President determined that the Recordings were not illegally or improperly obtained and accordingly, that they could be admitted as evidence.

Grounds of appeal and submissions

The Appellant’s notice of appeal contains three grounds of appeal:
The Deputy President made an error of law by not considering, properly or at all, whether the Appellant had actual or inferred actual knowledge when engaging in the conversations that were the subject of the Recordings, that they would be intercepted, recorded and listened to by the Respondent.

The Deputy President made a significant error of fact by finding that, when engaging in the conversations the subject of the Recordings, the Appellant had knowledge, whether actual or inferred actual, that the Respondent would intercept, record and listen to those conversations.

The Appellant was denied procedural fairness in his application for an adjournment of the hearing in order to file further evidence concerning his lack of knowledge that the Respondent would intercept, record and listen to the conversations.

In his notice of appeal, the Appellant also set out a number of matters which he considers make it in the public interest to grant permission to appeal. The Appellant stated that the Respondent’s conduct in intercepting the conversations:

· May constitute indictable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCFB 88
Decision Date: 9 MAY 2023

CaseChat Overview and Summary

In this case, Terrence McGlashan has appealed against a decision made by Deputy President Dean on 21 December 2022. The appeal concerns an unfair dismissal application that McGlashan lodged against MSS Security Pty Limited. McGlashan was employed by the company in the position of Business Manager – Client Services and was summarily dismissed on 29 August 2022. The appeal focuses on the legality of the recordings of internal telephone conversations that led to the dismissal, as well as the admissibility of the recordings as evidence in the proceedings. The appeal was heard on 9 February 2023, and permission to appeal was refused by the Fair Work Commission.

The legal issues in this case revolve around the admissibility of the recordings obtained by MSS Security, the actual or inferred knowledge that McGlashan had about the recordings, and whether procedural fairness was observed in the proceedings. McGlashan contends that the Deputy President erred by not considering whether he had actual or inferred knowledge of the recordings, and that the recordings should not have been admitted as evidence. The Deputy President had determined that the recordings were not illegally or improperly obtained, and that they could be admitted as evidence. McGlashan further argues that he was denied procedural fairness when his application for an adjournment was refused, which prevented him from filing further evidence.

The reasoning of the Full Bench of the Fair Work Commission, led by Vice President Catanzariti, was that the Deputy President's findings were reasonably open to her, and that the appeal grounds do not disclose any arguable cases of appealable error. The Full Bench found that the Deputy President was satisfied that McGlashan had "actual knowledge" that his phone line was being recorded, based on the evidence presented and the terms of the employment contract and policy documents. Additionally, the Full Bench rejected the argument that procedural fairness was denied, as it was not established that the Appellant was denied procedural fairness when his application for an adjournment was refused.

The outcome of this case is that permission to appeal is refused by the Fair Work Commission. The Full Bench determined that there is no arguable case of appealable error or denial of procedural fairness, and therefore it is not in the public interest to grant permission to appeal. The final orders of the case are as follows:

"IT IS ORDERED that permission to appeal is refused. I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Vice President Catanzariti, Deputy President Clancy and Commissioner Harper-Greenwell."

Orders