The Trustee for the MTGI Trust T/A Macquarie Technology Group International v David Johnston
[2015] FWCFB 1288
•23 MARCH 2015
| [2015] FWCFB 1288 [Note: refer to the Federal Court decision dated 18 October 2016 [2016] FCAFC 140 for result of appeal] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
David Johnston
(C2014/7752)
SENIOR DEPUTY PRESIDENT HAMBERGER DEPUTY PRESIDENT LAWRENCE COMMISSIONER CARGILL | SYDNEY, 23 MARCH 2015 |
Appeal against decision [2014] FWC 7098 and Order PR5567678 of Justice Boulton at Sydney on 24 October 2014 in matter number U2014/345.
[1] The Trustee for the MTGI Trust, trading as Macquarie Technology Group International (the appellant) has applied for permission to appeal a decision by Justice Boulton on 24 October 2014 1. The decision arose out of an application made under s.394 of the Fair Work Act 2009 (the FW Act) by Mr David Johnston (the respondent) for an unfair dismissal remedy against the appellant, his former employer. In his decision the Senior Deputy President found that the respondent had been unfairly dismissed by the appellant and ordered that he be paid compensation of twenty weeks’ pay.
[2] Section 604(1) of the FW Act provides for an appeal against a decision by a Member of the Fair Work Commission (the Commission) which is conditioned by permission to appeal. Section 604(2) of the FW Act provides that "[w]ithout limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so".
[3] However, in relation to an appeal against a decision arising under Part 3–2—Unfair dismissal of the Act, the right to appeal a decision, with permission, under s.604, is modified by s.400 of the Act,such thatpermission to appeal will only be granted if the Commission considers that it is in the public interest to grant permission and appeals concerning a question of fact can only be made on the ground that the decision involved a significant error of fact.
[4] It is clear from s.604 of the Act and, in respect of termination of employment matters, s.400 that the appeal process in the Act does not provide an opportunity for a party to re-argue a case, and have it determined by an Appeal Bench afresh, as if the decision of the single member at first instance had not been made. An Appeal Bench will only reconsider and determine an application itself, if satisfied that permission to appeal ought to be granted because it is in the public interest to do so and the decision appealed reflects error and, in relation to an appeal in respect of a termination of employment matter, a significant error of fact where the appeal concerns a question of fact.
[5] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s. 400 as ‘a stringent one’ 2.The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[6] At the hearing of the application for permission to appeal, the appellant was represented by its CEO, Mr Paul Wallace, and the respondent by a solicitor, Mr Metin Ozmen. Both parties had previously filed written submissions. While it is hard to identify clearly the grounds upon which the appellant relies, they appear to be twofold; first that the Senior Deputy President was wrong to conclude that the respondent had been dismissed (rather than having left his employment voluntarily) and secondly that the Senior Deputy President had wrongly failed to have regard to the respondent’s serious misconduct.
[7] Mr Wallace made a large number of factual assertions from the bar table, both in the proceedings before the Senior Deputy President and before the appeal bench. However the only sworn evidence that was provided to the Senior Deputy President was given by the respondent and Mr Ian Kerr, the appellant’s bookkeeper. This is the evidence upon which the Senior Deputy President properly relied.
[8] The Senior Deputy President set out the factual background to the matter as follows:
• The respondent and his family live in Bomaderry, a small town near Nowra on the South Coast of NSW, approximately 160 kms from Sydney.
• The respondent was employed by the appellant from July 2008 until 16 January 2014 and worked from his home. The appellant has its office in Yatala, Queensland. The appellant is the Australian distributor of InfiNet Wireless products and the respondent’s position required him to support sales, predominantly selling products from InfiNet Wireless. He was also required to assist with customer training and technical support.
• On 7 November 2013 the respondent’s wife gave birth to a son, who was born by an emergency caesarean operation 10 weeks premature at the Royal Hospital for Women, Randwick.
• The respondent took approved leave from about 11 November 2013 until 3 January 2014 to care for his four other dependent children while his wife was in hospital in Sydney.
On 12 December 2013 the respondent provided to the appellant a letter from the Royal Hospital for Women supporting a request for the annual leave to be taken as personal leave. The letter said that it was expected that the mother and child would remain in hospital in Sydney until 29 January 2014. No direct response was received from the appellant in relation to the request.
• On 20 December 2013, Mr Kerr emailed the respondent informing him as follows:
‘Assuming you will be on holidays your leave will take you up to Friday 03/01/14.’
• The respondent did not return to work on Monday 6 January 2014 and did not contact the appellant to discuss his absence.
• On 11 January 2014, Mr Wallace emailed the respondent congratulating him on the birth of his new son and raising various matters regarding his unsatisfactory work performance, particularly relating to price lists supplied to customers.
• On 16 January 2014 the respondent returned to work and sent an e-mail to Mr Wallace and others querying the pay he had received on 15 January 2014.
• There was a series of emails from Mr Wallace and other employees of the appellant later on 16 January in response to the respondent’s email. The effect of the response emails was as follows:
it was claimed that the respondent had abandoned his employment by not returning to work after his approved leave entitlements ran out on 3 January 2014; and
it was said that the respondent was not entitled to paid personal/carer’s leave as the circumstances relating to his wife’s hospitalisation did not amount to an ‘unexpected emergency’ within the terms of the FW Act.
[9] The Senior Deputy President found as follows:
‘[31] On the basis of the evidence presented, I am satisfied that the applicant did not abandon his employment with the respondent. There is nothing about the applicant’s conduct which indicated an intention to abandon his employment or to resign therefrom. The applicant took approved annual leave and then relied upon the support letter from the hospital to seek to transfer that leave to personal leave which he had accrued. He was never advised by the respondent that his request to transfer annual leave to personal leave was denied or that the respondent would consider that he had abandoned his employment if he did not return to work on 6 January. The applicant attended for work on 16 January and was advised later that day that the respondent considered that he had abandoned his employment.
[32] The full court of the Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2) considered what is termination at the initiative of the employer. It was said that:
“... an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment.”
[33] Other authorities suggest that for termination of employment to be at the initiative of the employer, it needs to be proved that the employer’s conduct intended to bring the employment to an end, or “on any reasonable view, would probably have that effect.”
[34] A consideration of the facts of this matter suggests that the respondent initiated the end of the employment relationship. The respondent was aware of the request for the applicant to take personal/carer’s leave and knew the circumstances in which such leave was sought. The respondent was aware that the applicant was having a family crisis brought on by the premature birth of his son and the need for the prolonged hospitalisation of his wife and baby in Sydney. The respondent was also aware of the family circumstances of the applicant, including that he had four children to care for at home. Although it was claimed in submissions that the respondent had advice that the applicant was not entitled in the circumstances to access his accrued personal/carer’s leave, the respondent never advised the applicant that the request for personal leave was denied or indeed that he was not entitled to take such leave.
[35] Apart from those matters, the conduct of the respondent was not consistent with the claim that the applicant had abandoned his employment by not returning to work after 3 January. Mr Wallace was in contact with the applicant by e-mail on 11 January and, whilst the e-mail conveyed dissatisfaction with the applicant’s work performance, it did not suggest that the applicant was no longer employed by the respondent. Further, the suggestion that the applicant had abandoned his employment was only raised after he returned to work on 16 January 2014 and after he queried the pay received for that month. Partly in response to that request, there was a series of what have been described as “disgraceful” e-mails sent to the applicant by Mr Wallace on 16 and 17 January, continuing to assert that the applicant was not entitled to take personal/carer’s leave and that he had abandoned his employment by not returning to work after his holiday entitlements ran out.
[36] In all the circumstances, I have come to the conclusion that the actions of the respondent brought the employment relationship to an end. Accordingly I find that the applicant was dismissed at the initiative of the employer.’ (references omitted)
[10] We consider that these findings were clearly open to the Senior Deputy President on the evidence before him.
[11] The Senior Deputy President found that the dismissal of the respondent was primarily due to his failure to return to work after his approved annual leave had ended. With regard to the alleged misconduct (and poor performance) of the respondent, the Senior Deputy President was not persuaded on the basis of the evidence put before him that there was any significant substance in the assertions and complaints made.
[12] Again, we consider that the Senior Deputy President’s conclusions were open to him on the evidence before him.
[13] The appellant has essentially sought to rerun the case he presented to the Senior Deputy President. He has made a number of factual assertions which the Senior Deputy President found were not supported by the evidence. We can detect no significant error in the Senior Deputy President’s findings, which were clearly open to him on the evidence presented to him during the proceedings.
[14] In these circumstances we dismiss the application for permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
P Wallace on his own behalf
M Ozmen solicitor on behalf of David Johnston
Hearing details:
2015
Sydney
17 February
1 [2014] FWC 7098
2 [2011] 192 FCR 78 at paragraph 43
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