Vincent Lombardo v Tidewater Marine Australia Pty Ltd T/A Tidewater
[2015] FWCFB 6788
•18 NOVEMBER 2015
| [2015] FWCFB 6788 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Tidewater Marine Australia Pty Ltd T/A Tidewater
(C2015/5770)
VICE PRESIDENT WATSON | PERTH, 18 NOVEMBER 2015 |
Appeal against decision [2015] FWC 5324 of Senior Deputy President Drake at Sydney on 5 August 2015 in matter number U2014/15085 – Legal representation – Whether an adjournment should have been granted to enable representation – No application for an adjournment made – No appealable error - Permission to appeal - Whether grounds of appeal attract the public interest –Permission to appeal declined - Fair Work Act 2009 - ss. 394, 400, and 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Senior Deputy President Drake handed down 5 August 2015 The decision of the Senior Deputy President concerned an unfair dismissal application made by Vincent Lombardo on 13 November 2014 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Tidewater Marine Australia Pty Ltd T/A Tidewater (Tidewater).
[2] At the hearing of the appeal matter on 30 September 2015, Mr C. Silver appeared for Mr Lombardo and Mr R. Wade appeared for Tidewater.
Background
[3] Mr Lombardo was employed by Tidewater in July 2004. His employment was terminated on 24 October 2014 on grounds of misconduct, which included having failed to discharge his responsibility as Chief Officer on watch on the bridge of a vessel and throwing a log book at the Captain of the vessel.
[4] At a telephone mention held before the Senior Deputy President prior to the hearing of the substantive unfair dismissal issue, Tidewater was granted the right to be legally represented. Therefore, at all material times Tidewater has been represented by Ashurst Australia. Mr Lombardo was not legally represented during the matter at first instance but has since engaged Mr Silver to represent him at the hearing of the appeal.
[5] The Senior Deputy President concluded that the dismissal of Mr Lombardo was not harsh, unjust or unreasonable after having considered each of the factors contained in s.387 of the Act.
Grounds of Appeal
[6] The ground of appeal identified in Mr Lombardo’s Notice of Appeal is as follows:
“I represented myself because of the financial circumstances I was in. I had been working from 6 pm to 6 am for over a month in very rough weather on the Exmouth Plato.
I arrived home the evening before the hearing and was un-rested before attending court, and unable to defend myself properly against the respondents team of five international lawyers.”
Permission to Appeal
[7] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by section 400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”
[8] 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’ 1. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’
[9] The test for determining the public interest has been described as follows: 2
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[10] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[11] The primary ground of appeal requires the Full Bench to determine whether the Senior Deputy President committed an appealable error by not doing more to ensure that Mr Lombardo was able to participate in proceedings in a meaningful and constructive way.
[12] Mr Lombardo submits that on the day of hearing before the Senior Deputy President he was not in a position to do justice to his case due to fatigue. He also contends that he was compelled to represent himself at the hearing due to financial limitations at the time and he lacked the legal skills and knowledge to adequately deal with the technicalities of his matter. While Mr Lombardo notes the assistance afforded to him by the Senior Deputy President, he submits that given her role in the proceedings such assistance could only be limited and attempts should have been made to afford him every opportunity to obtain his own legal representation.
[13] Tidewater submits that at no time between permission to appear being granted to its legal representative and the commencement of proceedings did Mr Lombardo raise any issue either in relation to the grant of legal representation or his ability to prepare for the proceedings due to any existing or future work commitments. It notes that there is no evidence to support assertions that Mr Lombardo was compelled to represent himself, that he had any significant issues with literacy, that there had been a clear lack of preparation, and that he had been unable to prepare for the matter due to limitations placed on him while away at sea.
[14] Tidewater further submits that within the constraints of the proceedings before her, the Senior Deputy President did enough to sufficiently ensure that Mr Lombardo was able to advance his case to the best of his ability. This included:
- Reversing the ordinary order is which evidence is adduced in proceedings;
- Taking steps to clarify the substance of Mr Lombardo’s contentions;
- Endeavouring to ensure that all of Mr Lombardo’s evidence and material had been placed before her;
- Attempting to facilitate Mr Lombardo’s understanding of Tidewater’s principal contentions;
- Adjourning proceedings on the first day early to allow Mr Lombardo to reflect upon Tidewater’s evidence; and
- Indicating to Mr Lombardo in advance what would be required in relation to closing submissions.
[15] Tidewater therefore contends that Mr Lombardo chose to represent himself mindful of the fact that it had been granted the right to legal representation, was able to participate in discussions identifying suitable hearing dates, was able to prepare for the hearing by seeking orders for the production of documents and attendance of witnesses, had adequate advance warning of the proceedings, and did not at any relevant time either request an adjournment or indicate that he required the opportunity to obtain legal representation.
[16] It appears to us that permission to appeal is essentially sought in order to provide an opportunity for Mr Lombardo’s case to be reheard with the benefit of legal representation. We accept that Mr Lombardo’s case could have been more effectively put if he was represented. However this is hardly an unusual situation. Nor is it the relevant consideration. An appeal is not a general plea to fairness. As the above cases make clear it will usually be necessary to establish that it is in the public interest to grant permission to appeal based on an arguable case of error.
[17] In the application for permission to appeal we must consider whether the Senior Deputy President was arguably in error in conducting the proceedings in the manner she did. In this connection it is necessary to consider the circumstances. Tidewater made application to be represented. The Senior Deputy President granted the application well in advance of the hearing on grounds provided by the Act. At no time did Mr Lombardo seek representation or an adjournment to obtain representation. The Senior Deputy President conducted the proceedings in a manner sensitive to Mr Lombardo’s inexperience as a witness and an advocate.
[18] It is not clear from the submissions advanced by counsel for Mr Lombardo what error is alleged to have been made by the Senior Deputy President. In the course of his submissions it is submitted that the Commission should have adjourned the matter to allow Mr Lombardo to obtain representation when it became clear that the case was not being advanced effectively. In our view, the Senior Deputy President was not under such an obligation. The situation may have been different if an adjournment application had been made and unreasonably refused. Mr Lombardo made no such application.
[19] We are not satisfied that an arguable case of appealable error has been established. Absent such a case we are unable to conclude that it is in the public interest to grant permission to appeal.
Conclusion
[20] For the above reasons we decline permission to appeal. The application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr C. Silver on behalf of Mr V. Lombardo.
Mr R. Wade on behalf of Tidewater.
Hearing details:
2015.
Melbourne – Video Link to Perth.
30 September.
Final written submissions:
Mr V. Lombardo on 8 October 2015.
Tidewater on 16 October 2015.
Mr V. Lombardo in reply on 23 October 2015.
1 (2011) 192 FCR 78 at paragraph 43.
2 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
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