Thomman Joseph v The Northcott Society
[2023] FWCFB 2
•10 JANUARY 2023
| [2023] FWCFB 2 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Thomman Joseph
v
The Northcott Society
(C2022/6966)
| VICE PRESIDENT CATANZARITI | SYDNEY, 10 JANUARY 2023 |
Appeal against order PR746248 of Commissioner McKenna at Sydney on 27 September 2022 in matter number U2022/6445 – permission to appeal refused.
Mr Joseph (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against the order and decision in transcript[1] of Commissioner McKenna, issued on 27 September 2022, for which permission to appeal is required. The Order concerned an application brought by the Appellant for an unfair dismissal remedy from his employment with the Northcott Society (the Respondent) under s.394 of the Act.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant filed an outline of submissions and made further oral submissions at the hearing on 21 November 2022.
For the reasons that follow, permission to appeal is refused.
Order Under Appeal
The relevant Order under appeal dismissed the Appellant’s unfair dismissal application for the reasons given extemporaneously during the hearing on 27 September 2022. We have provided a summary of the Commissioner’s reasons from the transcript of the hearing.
The Appellant was formerly employed by the Respondent as a disability support worker. The Appellant’s role involved working at a group home. The Appellant was dismissed on 6 June 2022 for alleged timesheet falsification, which was firmly denied by the Appellant. The dismissal was effected by the Respondent with a payment of five weeks' pay in lieu of notice.
The Commissioner first reviewed the Respondent’s evidence. The Respondent contended that the Appellant had been given multiple warnings that falsifying records was a breach of its policy from 2020 onwards.
The trigger for the Appellant’s dismissal arose from circumstances on 11 March 2022. In short, the Appellant was rostered for a shift from 2pm to 9pm at a group home. On the Respondent's evidence, Mr Pitigala, service manager, attended the group at around about 8.10pm and, having looked around, formed the view that the Appellant was not there. Mr Pitigala consequently called and emailed the Senior Operations Manager alerting them that the Appellant had left his shift early. Mr Pitigala also then amended the timesheet to reflect the fact that the Appellant left work at around 8pm.
During the investigation and show cause process, the Appellant, denied the allegation and offered no explanation for the alleged conduct. The Respondent found that it was more likely than not that the alleged conduct had occurred and that it was a breach of their code of conduct. At the end of the show cause processes, the Appellant was dismissed as confirmed in a letter dated 6 June 2022.
Turning to the Appellant’s evidence, the Appellant submitted that he completed his shift at 9pm on 11 March 2022. The Appellant submitted that he was at the group home in the outside courtyard and denied the Respondent’s allegations. In oral evidence at first instance, the Appellant said, “I strongly believe that it's purely fabricated by Northcott to remove me from the organisation”, such motivation was said by the Appellant to have arisen against the background of a range of issues that he had agitated in relation to conditions at the home and interactions with supervisors.
The Commissioner then turned to consider the factors in s.387 of the Act, firstly considering whether there was a valid reason for the Appellant’s dismissal. The Commissioner considered that a deliberate falsification of timesheets would constitute a valid conduct related reason for dismissal, noting that the Respondent did not call the other worker who was on shift that night to give evidence at the hearing and as such Mr Pitigala’s evidence remained hearsay. The Commissioner found that on balance the Appellant had left the workplace earlier than he recorded on the timesheet. In making this finding and in light of the contested evidence, she considered the combination of documentary evidence corroborating the Respondent’s timeline of events particularly significant. The Commissioner concluded that this constituted a valid conduct related reason for the dismissal.
Having regard to ss.387(b) and (c), the Commissioner found that the Respondent provided clear notification to the Appellant and afforded him procedural fairness. As to s.387(d), the Commissioner noted there was no unreasonable refusal by the Respondent to allow the Appellant a support person and the Appellant was supported by a CPSU official.
As to warnings related to unsatisfactory performance for the purposes of s.387(e), the Commissioner noted this was not strictly a performance related dismissal and was more accurately a conduct related dismissal. Nevertheless, she found the Appellant had been spoken to, cautioned and instructed previously about timesheet related matters, noting the Appellant contested this.
Having regard to ss.387(f) and (g), the Commissioner considered that the Respondent’s dismissal procedures are what would reasonably be expected by an employer with an in house HR/IR personnel. Finally, having regard to any other relevant considerations (s.387(h)), the Commissioner took into account that the Appellant had raised genuine grievances of his own concern, however she was satisfied that these were not contributing factors in the Respondent’s decision to dismiss the Appellant.
In conclusion, the Commissioner was not satisfied that the Appellant had been unfairly dismissed and she dismissed the Appellant’s application.
Grounds of Appeal and Submissions
The Appellant raises a number of grounds of appeal in his written submissions which have been summarised and distilled as follows:
1. The Appellant’s main contention is that the Commissioner erred in finding that the Appellant did not work his full shift on the night of 11 March 2021 and did not record the actual time he left work on his timesheet. The Appellant alleges that when this error is corrected it demonstrates that the Appellant was unfairly dismissed.
2. The Appellant submits that his dismissal was triggered by earlier incidents and his prior grievances with the Respondent and the Commissioner erred by finding otherwise.
3. The Appellant submits that the Commissioner erred by considering the evidence of Mr Pitigala and not the other employee on duty that night. Further, that he was not provided procedural fairness, by being able to rebut the evidence of Mr Pitigala.
4. The Appellant submits that he worked for the Respondent for 15 years and was not given a warning before being terminated. The Appellant contends that the Respondent is relying on ‘false and fabricated records’ to show that he was given multiple warnings.
5. The Appellant submits that the Commissioner did not properly consider the Appellant’s case, specifically the size of the Respondent’s business; that an incident report should have been filed if he left the workplace early; and gave “undue importance” to the show cause process followed by the Respondent. Further, the Appellant alleges that the Commissioner erred in her consideration of the factors in s.387 and because of this his dismissal was procedurally unfair.
In terms of why his appeal is in the public interest, the Appellant submits “Unfair dismissal is against public interest as due to the reason that all it will promote unfair culture in industry and promote enterprises to do what they want to do.”
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.604 of the Act is one to which s.400(1) of the FW Act applies.[2] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[6] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]
Consideration
Having considered the Appellant’s submissions and materials filed on appeal, we are not satisfied that there is an arguable case of error. We are of the view that the Appellant’s submissions are merely an expression of his dissatisfaction with the outcome of the Decision and are an attempt to reagitate the merits of his case as put to the Commissioner at first instance. We will nonetheless address the Appellant’s grounds of appeal for completeness.
We will deal with Grounds 1, 2 and 3 together as they all relate to the Commissioner’s findings in relation to valid reason for dismissal and the events of 11 March 2021. Ground 1 alleges that the Commissioner erred in finding that the Appellant did not work his full shift and did not accurately record the time he left work. Ground 3 takes issue with the Commissioner’s acceptance of Mr Pitigala’s evidence. Relatedly, Ground 2 alleges that the real trigger for the Appellant’s dismissal were the prior grievances he raised with the Respondent.
At first instance, the Commissioner weighed the totality of the evidence and observations of the witnesses and, on balance, adopted a preference for the Respondent’s evidence on these contested facts. These were factual findings which were reasonably open to the Commissioner on the evidence before her. We also note that the Commissioner was able to observe the witnesses giving evidence at the first instance hearing. The Commissioner’s advantage in having seen and heard the witnesses give their evidence, should be respected,[8] and the Appellant has not established a basis for us to depart from this principle. We are satisfied these grounds disclose no appealable error.
We will deal with Grounds 4 and 5 together as they both take issue with the dismissal process and allege that it was procedurally unfair. In essence, the Appellant alleges that given the size of the Respondent company and his length of service, he should have been given a warning prior to his dismissal. He also submits that the Commissioner failed to properly consider his case and gave too much weight to the show cause process. We note that the issue of whether the Appellant’s dismissal was procedurally fair was considered at first instance. The Commissioner weighed each of the factors in s.387 and ultimately determined that the Appellant’s dismissal was not unfair. We do not find that the Commissioner considered irrelevant matters or did not properly consider the Appellant’s case. As above, we are of the view that the Appellant’s contentions in this regard are merely an expression of his dissatisfaction with the outcome of the Decision.
Overall, it is clear that the basis on which the Commissioner reached her Decision discloses an orthodox approach to the determination of the Appellant’s application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on that evidence. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400(1) that:
· There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· The appeal raises issues of importance and/or general application;
· The Decision at first instance manifests an injustice, or the result is counter intuitive; or
· The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr T Joseph, on his own behalf.
Mr N Kluktewicz, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
6 December.
[1] PR746248.
[2] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[3] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[4] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[8] Fox v Percy [2003] HCA 22, 214 CLR 118 at [23] per Gleeson CJ, Gummow and Kirby JJ.
Printed by authority of the Commonwealth Government Printer
<PR749519>
0
0
0