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[2013] FWCFB 3016
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Supreme Caravans Pty Ltd
v
H Pham
(C2013/3755)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER CARGILL MELBOURNE, 22 MAY 2013
Appeal against decision [[2013] FWC 1559] of Commissioner Ryan at Melbourne on
12 March 2013 in matter number U2012/9893 - permission to appeal refused - appeal
dismissed.
[1] This is an appeal, for which permission is required, pursuant to s.604 of the Fair Work
Act 2009 (the Act), by Supreme Caravans Pty Ltd (the appellant) against a decision by
Commissioner Ryan of 12 March 20131 in which the Commissioner found that the dismissal
of Mr H Pham (the respondent) “was harsh, unjust or unreasonable”.2 The decision arose from
an application of the respondent under s.394 of the Act for relief in respect of the termination
of his employment by the appellant. The decision of 12 March 2013 incorporated a decision
and reasons given in transcript on 7 March 2013 by Commissioner Ryan that the dismissal
was harsh, unjust or unreasonable.
[2] In transcript, Commissioner Ryan dealt with other issues - the matters identified in
s.394(2) of the Act - whether the application was made in time; s.382 of the Act - whether the
respondent was a person protected from unfair dismissal and the matters, other than harsh,
unjust or unreasonable, within s.385 of the Act - whether the respondent was unfairly
dismissed, making findings in relation to each of those matters. None of the findings of
Commissioner Ryan were challenged on appeal which is unsurprising since they were made
following relevant concessions by the appellant.
[3] The appeal is limited to the finding of Commissioner Ryan that the termination was
harsh, unjust or unreasonable.
The grounds of appeal
[4] The appeal was brought on two principle bases:
The first ground of appeal advanced in the notice of appeal was that “the witness
statements were dismissed and not allowed into evidence”.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 3016
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The second ground that “the witness statements and the evidence will prove that
Mr Pham did intend to steal the piece of Checker plate”.
[5] In its written submission3 in the appeal, the appellant submitted that:
“[O]ur written submission concerning the appeal is written based on a response to
Commissioner Ryans’ findings and how the outcome may have differed if witnesses
were present” [emphasis added].
It concluded:
“We wish to apologise to Fair Work Australia and Commissioner Ryan for not having
our witnesses present. We know that if our witnesses were present the outcome of the
proceedings would have been different.
We thank Fair Work Australia for allowing us to apply for an appeal and present our
witnesses and their statements which will without a doubt prove Mr Phams intentions
to steal. It will prove that Mr Phams actions were serious misconduct therefore
warranting his dismissal.” [emphasis added]
Approach to the appeal
[6] Section 604(1) of the Act provides for an appeal against a decision by a Member of the
Fair Work Commission (the Commission), conditioned by permission to appeal. Section
604(2) of the 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”.
[7] 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 that permission 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.
[8] It is clear from s.604 of the Act, in respect of termination of employment matters, and
in s.400 of the Act that the appeal process in the Act does not provide an opportunity for a
party to reargue 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.
Admission of new evidence on appeal
[9] Given the appellant thanked the Appeal Bench for allowing to present its witnesses
and their statements in its written submissions, the appellant was asked, at the commencement
of the hearing, if it was seeking to have new evidence admitted in the appeal. The appellant
confirmed that it did seek to have new evidence admitted on appeal. It put submissions in
support of such an application, having been appraised of the usual principles for the
admission of new evidence on appeal.
[2013] FWCFB 3016
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[10] The Appeal Bench declined to admit new evidence in the appeal. Our reasons for
doing so were given in transcript,4 as follows:
“The appellant has made application to admit new evidence in the appeal. We’ve
considered that application against the usual principles for the admission of new
evidence on an appeal as set out, for example, in Power Projects International Pty Ltd
v AMWU5, and Akins v National Australia Bank.6 They are, in summary, that first it
must be shown that the evidence could not have been obtained with reasonable
diligence for use at the trial; secondly, the evidence must be such that there’s a high
degree of probability that there would have been a different outcome; and, thirdly, the
evidence must be credible.
As noted by the Full Bench in Harvey v Australian Injecting & Illicit Users League7,
an appeal bench would not usually admit evidence which could have been called at
first instance. That approach is grounded in an important policy consideration –
namely, that an appeal should not be an opportunity for parties to remedy avoidable
deficiencies in the evidence adduced at the trial. We’re not satisfied that the evidence
should be admitted in the appeal. The evidence was clearly available to the appellant
at the time of the hearing at first instance and its admission now would not be
consistent with the usual principles for the admission of new evidence on appeal or the
policy consideration underlying it.
Whilst we have some sympathy for the appellant, which appeared unrepresented
before Ryan C and on appeal, we are satisfied that the appellant was afforded the
opportunity to bring the evidence before Ryan C. The admission of the evidence now
on appeal would be contrary to the important policy considerations stated in Harvey v
Australian Injecting & Illicit Users League and does not meet the established
principles for admission of new evidence on appeal. In relation to the photographs of
the machinery utilised by the respondent to undertake private work, which the
appellant contends supports an additional basis of misconduct not put to Ryan C, we
find that that is an argument which was available to the applicant at the time of the
hearing and was not put by the appellant. It is not appropriate, nor consistent with the
principles applicable to an appeal to allow the additional argument and related
evidence on the appeal.”
[11] The application to bring new evidence on the appeal is refused.
Permission to Appeal
Admission of evidence at first instance
[12] In the context of the clear information provided to the parties within the Notice of
Listing before the hearing,8 the invitation from the Commissioner to the appellant to call
evidence9 and the attention drawn in the proceedings as to the question of weight arising in
relation to evidence as against unsworn and untested statements,10 the effect of the appellant’s
failure to call evidence arose from the appellant’s conduct of the matter at first instance and
not as a result of error on the part of Commissioner Ryan. In the proceedings before the
Commissioner, the appellant’s representative did not call any witnesses (himself included)11
and accepted that the appellant was responsible for its failure to bring evidence from
[2013] FWCFB 3016
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witnesses12 and that he was limited in addressing the evidence to that called by the
respondent.13 No error on the part of the Commissioner has been demonstrated in relation to
acceptance of evidence or the limited weight given to the statements filed by the appellant.
Findings on the evidence
[13] Following the resumption at the hearing after our decision to refuse the admission of
new evidence, the appellant’s representative submitted14:
“ . . . I’ve never said that (indistinct) Ryan C that those decisions were wrong.
However, what I do say is that it would have been different should the witnesses have
been cross-examined against some facts that actually (indistinct). Again Ryan C found
against us based on the evidence before him and based on the Act. Having read
through the Act and considering the witnesses (indistinct) the outcome would have
been different. (indistinct) would have been completely different.”
[14] In transcript the Full Bench refused permission to appeal:15
“The appellant concedes that there was no error by the Commissioner on the basis of the
evidence before him and raises no public interest consideration which would warrant
permission for appeal. In those circumstances we decline permission to appeal. The
appeal is dismissed.”
Conclusion
[15] Permission to appeal is refused. The appeal is dismissed.
[16] The file will be returned to Commissioner Ryan to determine the outstanding question
of remedy.
SENIOR DEPUTY PRESIDENT
Appearances:
J Markovic for the appellant.
J Maloney, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU) for the respondent.
Hearing details:
2013.
Melbourne:
May 14.
Printed by authority of the Commonwealth Government Printer
Price code A, PR536641
[2013] FWCFB 3016
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1 [2013] FWC 1559.
2 Decision in transcript, at para 27.
3 Exhibit A1.
4 Transcript, at paras 50-52.
5 [2011] FWAFB 1327, para 12
6 (1994) NSWLR 155 at 160
7 [2007] AIRCFB 230 at paragraph 18
8 Under the heading “What happens at a conference or Hearing?”, the attached information stated:
“Attached to this notice from Fair Work Australia are some directions that you must comply with. These directions
include a requirement that you file with Fair Work Australia and serve on the other party or their representative an
Outline of Submissions and Witness Statements for any witnesses you intend to call (including yourself) at the
conference/hearing. You and all your witnesses must attend the hearing and be prepared to give evidence. If you or a
witness does not attend the conference/hearing, the application may still proceed and a decision may be made against
you.” [emphasis added]
9 Transcript, at paras 563-568.
10 Transcript, at paras 616 and 637.
11 Transcript, at paras 563-568.
12 Transcript, at para 636.
13 Transcript, at para 638.
14 Transcript at para 53.
15 Transcript, at para 54.
