Yutaka Shinoda v Challenger Security Pty Ltd
[2022] FWCFB 236
•14 DECEMBER 2022
| [2022] FWCFB 236 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Yutaka Shinoda
v
Challenger Security Pty Ltd
(C2022/6446)
| VICE PRESIDENT CATANZARITI | SYDNEY, 14 DECEMBER 2022 |
Appeal against decision [2022] FWC 2420 of Commissioner Ryan at Sydney on 12 September 2022 in matter number U2021/11788 - permission to appeal refused.
Introduction
Mr Yukata Shinoda (the Appellant) has applied for permission to appeal, and has appealed, against a decision made by Commissioner Ryan on 12 September 2022 (Decision) [1] which concerned an application made by the Appellant for an unfair dismissal remedy in respect of the termination of his employment with Challenger Security Pty Ltd (the Respondent). The Commissioner determined that the Appellant’s dismissal was not harsh, unjust or unreasonable within the meaning of s 387 of the Fair Work Act 2009 (the Act) and accordingly, dismissed the application.
The appeal was initially listed for hearing on 17 November 2022 but this listing was subsequently cancelled to allow the Appellant time to attend an appointment arranged through the Commission’s Workplace Advice Service on 9 November 2022. New directions were made on 18 November 2022 and the appeal was listed for hearing on permission to appeal and the merits of the appeal on 6 December 2022. The Appellant was assisted by an interpreter at the hearing.
Factual Background
The Respondent is a provider of security services. At the time of his dismissal, the Appellant held the position of a security guard. As a consequence of a COVID-19 lockdown imposed in Sydney in mid-2021, the Appellant was stood down because the site at which he was working temporarily ceased operations that required security services and there were no other duties that could be assigned to him by the Respondent. The continuing nature of the lockdowns resulted in this stand down being extended until 11 October 2021.
On 3 October 2021, the New South Wales Minister for Health and Medical Research issued the Public Health (Covid-19 General) Order 2021 (Public Health Order). This commenced on 11 October 2021 and provided that a person could not enter a retail premises unless they had received two doses of a COVID-19 vaccine or were an exempt person (as defined). While there was correspondence between the parties that established the Appellant had received a first dose of a COVID-19 vaccine, the Appellant did not advise he had received a second vaccination. Despite the Respondent having outlined that the Appellant could not return to work without having been fully vaccinated, the Appellant did not provide a direct response when asked whether he was going to return to work. When an email from the Respondent asking the Appellant whether he was resigning and if not, whether he had received two COVID-19 vaccinations did not receive a reply, the Appellant was sent a ‘show cause’ letter in which it was outlined that the Appellant’s ability to lawfully perform the inherent requirement of his role of security guard was at risk for the following reasons:
1) The Respondent’s clients required evidence that employees of the Respondent had received at least two doses of a COVID-19 vaccination;
2) It was requirement of the NSW Health department that anyone entering a retail site of clients of the Respondent must have had at least two doses of a COVID-19 vaccination;
3) The Appellant had been directed to provide evidence of vaccination but had refused to do so; and
4) The Appellant’s role could not be performed elsewhere.
The Respondent outlined that as a result of these issues, it could not provide the Appellant with other alternative work because to do so would place it at risk of losing a contract with a major client and/or a penalty from the NSW Health Department. As such, the Respondent invited the Appellant to a ‘show cause’ meeting for the purposes of discussing these issues and their impact on his ongoing employment. The Appellant was also not available at proposed meeting times and nor did he engage with a subsequent request that he respond to the matters in the ‘show cause’ letter. As a result, the Respondent asked the Appellant to answer four specific questions. The Appellant complied and his answers indicated that while he was not yet fully vaccinated, he was planning to become so. This prompted the Respondent to request that the Appellant confirm a booking for a (second) COVID- 19 vaccination by 5.00pm on 10 November 2021. With the Appellant not having responded, the Respondent sent a letter of termination dated 12 November 2021 which outlined the Appellant’s employment would be terminated effective 17 December 2021 on the basis that he was no longer able to meet the inherent requirements of his role as a security guard.
At 7.44pm on Thursday 16 December 2021, the Appellant sent an email to the Respondent attaching a copy of an Australian Government International COVID-19 Vaccination Certificate. The certificate indicated the Appellant had received his second dose of a COVID-19 vaccine on 16 December 2021. The Appellant then filed his unfair dismissal application with the Commission via email at 9.54am on Friday 17 December 2021. This latter fact was not known by the Respondent when it first responded to the Appellant’s 16 December 2022 email. In an email sent at 3.33pm on 17 December 2021, the Respondent requested a meeting to discuss the Appellant’s ongoing employment. The Appellant’s subsequent reply email did not clarify things. When the Respondent advised the Appellant in writing on 20 December 2021 that his termination was retracted because he had met the vaccination requirements and that it wanted to meet and discuss his ongoing employment and work shifts, the Appellant replied by email as follows:
“Retract ??
Sorry. I have already logged application. I am indignant about the idea of Challenger Security P/L.
Please talk [sic] appropriate organization.”[2]
The Decision
In the Decision, the Commissioner set out the facts of the matter and summarised submissions made by the parties. The Commissioner concluded the Appellant was dismissed and decided the initial matters he was required by s.396 of the Act to consider. The Commissioner then dealt with each of the matters under s.387 of the Act.
In relation to s.387(a) the Commissioner noted the effect of the Public Health Order was that a person was required to have two doses of a COVID-19 vaccine or a valid exemption. The Commissioner found that because the Appellant had not become fully vaccinated until 16 December 2021, which meant he had been unable to fulfil his role, and because there had been no suitable alternative duties available, there was a valid reason to terminate his employment based on the information available to the Respondent at the time the decision was made. The Commissioner did not consider the Appellant subsequently becoming vaccinated on 16 December 2021 had an impact on the finding of a valid reason, noting the Appellant had failed to advise the Respondent of his intention to become fully vaccinated in advance. The Commissioner also noted the Respondent had attempted to retract its decision and maintain the Appellant’s employment but observed such a retraction would have required the consent of the Appellant, which was not forthcoming. The Commissioner rejected the submission that the real reason for the termination of the Appellant’s employment was an altercation he had previously had with a supervisor in 2020.
In relation to ss.387(b) and (c), the Commissioner was satisfied the Appellant was notified of the valid reason for dismissal in the ‘show cause’ letter and given an opportunity to respond to that reason. The Commissioner’s findings in relation to ss.387 (d) –(g) did not weigh in favour of a finding that the Appellants dismissal was unfair.
In relation to s.387(h), the Commissioner took into account the Appellant’s length of service and that he is from a non-English speaking background but did not consider these matters supported a finding that the Appellant’s dismissal was harsh, unjust or unreasonable in all the circumstances of the case. The Commissioner also noted that the Appellant had tendered an independent medical report but because it was not related to the issue of vaccination and the Appellant had been able to receive a second dose of a COVID-19 vaccine on 16 December 2021, he attached no weight to it.
The Commissioner also stated that even if he had found that the Appellant was unfairly dismissed, he would not have exercised his discretion to order a remedy because he considered any loss suffered by the Appellant could have been avoided if the Appellant had accepted the Respondent’s offer to retract the termination of his employment.
Having completed consideration of the criteria in s.387of the Act, the Commissioner stated he was satisfied that the Appellant’s dismissal was not harsh, unjust or unreasonable because there was a valid reason for the dismissal and no other factors weighed in favour of a finding that the dismissal was unfair.
Appeal grounds and submissions
The grounds for appeal that can be discerned from the notice of appeal were briefly stated as:
1) “My dismissal was unfair and unreasonable. Without consent and no signature of any document, the Respondent cancel full time (award) employment contract. [signed 01/Jan/’15]”;
2) “Commissioner. P. Ryan did not listen my Grievance Lodgement for Challenger Security P/L (Director: Darren Krug)”; and
3) “I would like to say that Human rights violations. Don’t see people as people. Think disposable mask or disposable chopsticks in workers. It is not fair.”
The public interest ground raised in the notice of appeal was that the Respondent and the Commission “look down on Non-English background people”.
In letters to the Commission dated 5 October 2022, 25 October 2022 and 11 October 2022, the Appellant referred to the Commissioner as “the person who made the original decision” and asserted there was “an error of Law and Fact” and that the Commissioner had “acted wrong part” of the Act. Further this correspondence outlined that the Commissioner “used irrelevant factors to guide the decision”, did not fully understand the facts and did not consider an “important” piece of information. There was additional correspondence, comprising many separate emails, sent by the Appellant to the Commission that almost exclusively raised issues going to the merits of his unfair dismissal application, as opposed to engaging with the Decision. Amongst the material was the allegation made by the Appellant that he was dismissed because he had made a complaint about management. The Appellant also raised as an apparent ground that he did not sign documentation relating to his termination. The Appellant also submitted the medical report of Dr Warwick Blakemore dated 26 November 2021 that had been received into evidence by the Commissioner.[3]
When sent the directions made on 18 November 2022, the parties were asked to advise the Commission whether they wished for the matter to be determined on the papers. The Respondent provided its consent on 21 November 2022. This prompted correspondence from the Appellant dated 22 November 2022, which stated:
“Dear Associate to Vice President Catanzariti AM
‘The Respondent consents’. This is unfathomable.
At this point, how came [sic] the Respondent “Consents” ????
Iʼm sorry to bother you over and over. Please keep the International Human Rights System, the International Convention on the Elimination of All Forms of Racial Discrimination or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
I would like to call for an apology for the deep insult.
In the name of the Law, I believe, everyone are [sic] equal. Dose not matter any Nation, Language, or Gender. Reasonable claim to treat fair.
For the young Japanese boys and girls who has the grades, has the drive, has the will to work. Buy does not have ability of fluently English.Itʼs going to be a problem if this sets a bad precedent.
Hope you understand
Kind Regards…”
In a reply email from the Commission, the Appellant was asked to advise whether he consented to the matter being determined on the papers or whether he wanted an oral hearing. On 23 November 2022, the Appellant sent further correspondence to the Commission stating, inter alia, that he wanted “Rectitude or Justice”. On 28 November 2022, the Appellant sent an email that appeared to be in response to the Respondent’s request for permission to be represented by Employsure, which stated:
“A lawyer is a person who is admitted to the legal profession by a Supreme Court of a sate [sic] or territory. A paid agent is a person who charges or receives a fee to represent a person in the matter before the Fair Work Commission.
However, is it okay to allow the person who break the law?
However, is it okay to protect the company that break Work laws and regulations that govern Australia’s workplaces, the employee/employer relationship.Without any consents or signed documentation, deed of release that my full time employment.
Without any notice to transfer money that all relevant / Annual leave and Long service leave which I did not agree to amount.Challenger Security Pty. Ltd. breached the work law and Human Rights are codified in international agreements or treaties.
Enploysure Law Pty. Ltd violate a rule or a treaty.Please fair judgment.
Hope you understand.”
A follow-up email was sent to the Commission by the Respondent on 29 November 2022, in which it was stated:
“We note the Appellant has failed to file submissions in accordance with Items 1 and 2 of the directions issued on 18 November 2022.
Considering the above, the Respondent seeks clarity as to the status of the appeal.
We note the Respondent’s submissions are due on 2 December 2022, which the Respondent is on track to file.”
At this point, the Appellant re-sent his 22 November 2022 email referred to above at [16] and a further email dated 29 November 2022 stating:
“In the email, mention ‘For the young Japanese boys are girls who has the grades, has the drive, has the will to work in Australia. But does not have ability of fluently English’ Is this ‘the public interested’??
The significant error of the fact is the Respondent ignore the International Human Rights System, the International Conversation on the Elimination of All Froms [sic] of Racial Discrimination or the Conversation against Torture and Other Cruel, Inhuman Or Degrading Treatment or Punishment.”
At the hearing, the Appellant largely repeated the contentions he had outlined in the notice of appeal and his correspondence. He added that he wanted young Japanese people working overseas to have a fair experience when working and asserted there had been issues related to his JobKeeper nomination form and some ATO paperwork, although these matters fell outside those which the Commissioner was required to consider.
The Respondent submitted that the Appellant’s dissatisfaction with the Decision is not enough to trigger the operation of s.400 of the Act and in particular, the Appellant’s submissions regarding international conventions, matters of equality, matters of fairness and a bad precedent, are not enough to satisfy the test required under s.400(1). The Respondent submitted the Appellant’s submissions do not explain why appealing the Decision would be in the interests of a person beyond himself, such as an ordinary member of the public. It argued that even if the Appellant has suggested the public interest test applies to Japanese children who have the drive to work but are not fluent in English, this would be irrelevant because the Decision was not made for any reason that related to the Appellant’s ability to speak English or his work ethic. In terms of s.400(2), the Respondent submitted the Appellant’s submissions do not identify either a simple error or a significant error in the Decision. As such, the Respondent submitted the Appeal should be dismissed because the arguments of the Appellant had failed to establish why permission to appeal should be granted and did not meet the criteria under s.400 of the Act.
Consideration
In considering the merits of the appeal, it is relevant to observe that an appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[4] There is no right to appeal and 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.”[6]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[7] 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.[8]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. 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.[9] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
For reasons that follow, we are not satisfied that it is in the public interest to grant permission to appeal in this case.
Firstly, the Decision dealt with the Appellant’s unfair dismissal application in an orthodox and methodical manner. The Commissioner outlined the salient background facts in chronological order and with sufficient detail. The Commissioner considered each of the criteria in s.387 of the Act. In particular, the Commissioner considered the various matters the parties raised in respect of s.387(a) and then s.387 (h) in clear and discreet terms before reaching his conclusions. The Commissioner addressed the allegation of the Appellant that he was dismissed because he made a complaint about management and he also considered the medical report of Dr Blakemore, both of which the Appellant has raised in prosecuting this appeal.
Secondly, the Commissioner’s reasoning in determining the unfair dismissal application was correct. The dismissal was procedurally fair and the impact of the Public Health Order on the Appellant’s employment in the event he was not fully vaccinated was clear. It was open to the Commissioner to conclude there were no suitable alternative duties available given the nature of the Appellant’s work and the commercial arrangements of the Respondent.
Thirdly, whilst the notice of appeal and subsequent correspondence asserted errors of law and fact and that the Commissioner “used irrelevant factors to guide the decision”, we are not persuaded the Appellant has established significant errors of fact required by s.400(2) of the Act. No particulars were outlined and while the Appellant might disagree with the findings of the Commissioner, this does not establish the findings were erroneous.
Fourthly, we are not persuaded it is reasonably arguable that the Commissioner failed to take into account considerations said by the Appellant to have been material to the determination of his unfair dismissal application. The Commissioner considered the Appellant’s contention that he was dismissed because he made a complaint about management. The Commissioner found that the Respondent’s attempt to retract the dismissal and maintain the employment answered this contention. It was open to the Commissioner to do so, and we agree with the finding. Further, we observe the Appellant emphatically rejected the retraction. We are also satisfied the Commissioner considered the relevance of Dr Blakemore’s report and consider it was open to him to determine that no weight should be attached to it. The chain of correspondence between the parties indicates that it was the question of the vaccination requirement, and not the issues covered in the report of Dr Blakemore, that informed the Respondent’s decision to dismiss the Appellant. As to the Appellant’s complaint that he did not sign documentation relating to his dismissal, there was no requirement that he consent to his termination or sign documentation relating to it.
Finally, notwithstanding the Appellant’s various, broad assertions of human rights violations, racial discrimination and torture, we do not consider these were made out. While significant to the Appellant, the appeal does not raise any matters of importance or general application. Ultimately, this matter turns upon its own facts and the application of a valid Public Health Order that was binding upon the Appellant and impacted the Respondent’s business operations. The Commissioner reached a decision that was open to him on the material before him.
We consider it most unfortunate that the Appellant chose not to accept the retraction of the dismissal offered by the Respondent when it became apparent that he was fully vaccinated and instead elected to pursue the unfair dismissal application. This is particularly so because it would seem that the Respondent had no issues with the quality of the Appellant’s performance as a security guard.
However, an appeal exists for the correction of error and while the Appellant is aggrieved by the Decision, he seeks to re-argue through this appeal the same matters which were appropriately considered and weighed by the Commissioner in search of a different result. As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
VICE PRESIDENT
Appearances:
Mr Y Shinoda, on his own behalf.
Mr A Mitnovetsky, for Challenger Security Pty Ltd.
Hearing details:
2022.
Melbourne (via video-link):
6 December.
[1] [2022] FWC 2420.
[2] Attachment SO-19 to Exhibit R3, Digital Court Book at 113.
[3] Exhibit A2, Digital Court Book at 24-30.
[4] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[5] 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, 85 ALJR 398 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]
[6] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[7] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[8] 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]
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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