1
Fair Work Act 2009
s.604—Appeal of decision
Trimatic Management Services Pty Ltd
v
Daniel Bowley
(C2013/4235)
SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SAMS
COMMISSIONER HAMPTON MELBOURNE, 2 AUGUST 2013
Appeal against decision [[2013] FWC 2533] of Commissioner Steel at Adelaide on 24 April
2013 in matter number U2012/16616.
Introduction
[1] Trimatic Management Services Pty Ltd (Trimatic) has filed a notice of appeal against
a decision1 of Commissioner Steel in respect of an unfair dismissal remedy application made
to the Fair Work Commission (FWC) by Mr Daniel Bowley.
Commissioner’s decision
[2] In his decision the Commissioner points out the background to Mr Bowley’s dismissal
by Trimatic as follows:
“[2] Mr Bowley commenced with the respondent on 20 November 2007 and at the
time of his dismissal was engaged as a ‘Floor Manager’ or ‘Customer Experience
Sales Manager’ in charge of a team of agents in the respondent’s facility in Adelaide.
He was dismissed on 27 November 2012 with immediate effect. The reasons for the
dismissal set out in his termination letter of that date refer to; unsatisfactory
performance against key targets despite an extensive performance management
improvement plan being in place since early September 2012, the lack of regular
completion of trigger sessions with staff and a continued and evidenced unacceptable
lack of professionalism and attitude within the workplace (the Commission’s
paraphrasing).”
[3] The Commissioner found that Mr Bowley’s unfair dismissal remedy application was
made within the time limit in s.394(2)(a) of the Fair Work Act 2009 (Cth) (FW Act) and
Mr Bowley was protected from unfair dismissal.2
[2013] FWCFB 5160
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 5160
2
[4] With respect to whether a person has been unfairly dismissed, s.385 of the FW Act
provides as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[5] There was no dispute before the Commissioner that Mr Bowley was dismissed by
Trimatic. The Commissioner found that Trimatic is not a small business so the matter of
whether Mr Bowley’s dismissal was consistent with the Small Business Fair Dismissal Code
was not relevant and that Mr Bowley’s dismissal was not a redundancy.
[6] The Commissioner went on to consider whether Mr Bowley’s dismissal was harsh,
unjust or unreasonable. Section 387 of the FW Act provides as follows in this regard:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and
welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal;
and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory
performance before the dismissal; and
[2013] FWCFB 5160
3
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal;
and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[7] In finding there was a valid reason for Mr Bowley’s dismissal the Commissioner said:
“S.387(a) - Was there a valid reason for dismissal?
[33] Given the body of evidence provided by the respondent as to the nature and
characteristics of their industry; the requirements of the role of the applicant and the
nature and detail of the various performance management applied to the applicant, the
Commission considers that a cogent case has been provided that the applicant did not
perform to the legitimate requirements of the employer in the reported factual
circumstances. The Commission is persuaded that such a reason is defensible on an
objective assessment of the factual circumstances of the applicant’s management and
dismissal. The respondent therefore has a valid reason for dismissal related to the
applicant’s capacity or conduct in the unacceptable performance of the applicant and
in his response to performance management. The characteristics of that role are
dynamic and focused and it is apparent the weight of evidence is such that the
applicant acted in contrast to that required.
[34] The applicant’s contrasting conduct seems to have its genesis in the attitude of
the applicant to such a time critical and focussed workplace. It is accepted that he did
not attain or reach the standards required in a number of areas. It would seem he
consistently was manifesting his personal style in the workplace and demonstrated that
he had issue with the expectations of the respondent.
[35] There are some matters of conduct relied upon that are disputed and in the
consideration of the Commission seem somewhat excessive to be relied upon e.g. the
missing of a lunch on a day the applicant was ill but came to work on the request of
the respondent, the nature of the usage of Mr Vianna’s name and the issue of lateness
identified by the applicant attending at one minute past starting time.
[36] However, taking the body of evidence into consideration and an assessment of
the factual circumstances the Commission is persuaded that the respondent had a valid
reason for dismissal of the applicant in terms of his deficient performance in his role.”
[8] In respect of whether Mr Bowley was notified of that reason and given an opportunity
to respond, the Commissioner found as follows:
[2013] FWCFB 5160
4
“S.387(b) and (c) - Whether the person was notified of that reason and whether the
person was given the opportunity to respond.
[37] The applicant was provided with his ‘Termination of Employment’ letter and it
was read out to him in the final meeting with the respondent on 27 November 2012.
That letter is substantive as to the conclusions of the respondent as to his performance.
The evidence is that the applicant was asked if he had any questions and he made
some comments of his disappointment and then left.
[38] This scenario is deficient in procedural fairness in that the decision to dismiss
the applicant was taken some time before the actual meeting. The respondent then
planned the meeting, gave him his letter and orally confirmed its contents. The
evidence of Mr Spicer is that he received recommendations from his management to
dismiss the applicant from mid November. He recollects that he made the decision
two days before the applicant’s dismissal meeting thus allowing the preparation of the
dismissal letter and the organising of the meeting. Given that the decision had been
made by Mr Spicer, the officers of the respondent just informed the applicant by
giving him the letter of dismissal.
[39] In the matter of Crozier v Palazzo Corporation Pty Ltd a full bench of the
Australian Industrial Relations Commission determined that:
‘As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to
terminate their employment in order to provide them with an opportunity to
respond to the reason identified. Section 170CG(3)(b) and (c) would have very
little (if any) practical effect if it was sufficient to notify employees and give
them an opportunity to respond after a decision had been taken to terminate
their employment.’
[40] In the Commission’s view the above reference determination applies to the
consideration within s387(b) of the Act. That notification of the valid reason for
dismissal must be given to the employee before the decision to terminate is made.
Thus in this matter the applicant was deprived of an opportunity to respond to an
impending termination and thus potentially offer further information for the
consideration of the respondent.” [Endnotes omitted]
[9] The Commissioner then, in effect, found Mr Bowley was not unreasonably refused a
support person by Trimatic and was warned of his unsatisfactory performance and dealt with
the matters in ss.387(f), (g) and (h) of the FW Act.
[10] The Commissioner concluded in respect of whether he was satisfied Mr Bowley’s
dismissal was harsh, unjust or unreasonable as follows:
“Was the dismissal of the applicant harsh, unjust or unreasonable?
[45] After consideration of all the relevant criteria the Commission concludes that
the dismissal of the applicant was lacking in procedural fairness and because of its
personal and economic consequences on the applicant was harsh (see Stewart v
University of Melbourne).” [Endnote omitted]
[2013] FWCFB 5160
5
[11] The Commissioner went on to consider remedy. Section 390 of the FW Act provides
as follows in respect of a remedy that may be ordered by the FWC:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair
dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application
under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate;
and
(b) the FWC considers an order for payment of compensation is
appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[12] Having set out relevant provisions of the FW Act concerning the Commissioner’s
decision and also set out relevant parts of the Commissioner’s decision, we now turn to
consider the relevant appeal provisions in the FW Act and Trimatic’s grounds of appeal.
Appeal of decisions
[13] Section 604 of the Fair Work Act 2009 (Cth) (FW Act) concerns an appeal of a
decision of the FWC and provides as follows:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the
Minimum Wage Panel)…
may appeal the decision, with the permission of the FWC.
(2) Without 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.”
[14] Section 400 of the FW Act contains additional provisions in respect of an appeal
against a decision concerning unfair dismissal. Section 400 provides as follows:
[2013] FWCFB 5160
6
“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.”
Grounds of appeal
[15] Trimatic’s grounds of appeal centred around the Commissioner’s conclusion that
Mr Bowley’s dismissal was “lacking in procedural fairness”.3
[16] Trimatic also submitted the Commissioner erred by reserving the right to amend his
decision as the decision had been “provided without the benefit of the transcript” in
circumstances where (a) the Commissioner had the benefit of the transcript prior to the
decision being handed down and (b) reserving the right to amend the decision would create
significant uncertainty for the parties. This ground of appeal is without merit. The
Commissioner did not amend his decision. We therefore dismiss this ground of appeal.
[17] Trimatic did not challenge the Commissioner’s finding that Mr Bowley was protected
from unfair dismissal. Nor did they challenge the Commissioner’s decision in respect of
ss.385(a), (b) and (d) of the FW Act.
[18] The details of Trimatic’s central ground of appeal are conveniently set out in their
notice of appeal as follows:
“2.1 The Commissioner erred by failing to take into account, or proper account, the
weight and totality of all the evidence in reaching his conclusion that the
dismissal was procedurally defective because the Appellant had failed to
(a) notify the Respondent of the valid reasons for termination and (b) give the
Respondent an opportunity to respond.
2.2 The Commissioner erred by failing to take into proper account the totality of
the criteria in section 387 of the Fair Work Act 2009 (‘FW Act’) and by
placing undue and improper weight on one alleged procedural defect in
reaching his conclusion the dismissal was unfair.
2.3 The Commissioner erred by misconstruing and misapplying the provisions of
subsections 387(b) and (c) of the FW Act by concluding that, at about the time
at which the dismissal is effected, the employer must notify the employee of
the reasons for the dismissal and allow the employee an opportunity to respond
before the decision to dismiss is made.
[2013] FWCFB 5160
7
2.4 The Commissioner erred by (a) placing undue reliance on a single paragraph of
the decision of the Full Bench of the Commission in Crozier v Palazzo
Corporation Pty Ltd (2000) 98 IR 137 (‘Crozier’), (b) misconstruing and
misapplying that paragraph and (c) failing to consider or properly the reasons
for the decision of the Full Bench in Crozier, which held the dismissal was not
unfair in circumstances where it found the employee was (i) neither warned
nor notified of the reasons for the dismissal and (ii) given no opportunity to
respond.”
[19] We are not persuaded the Commissioner erred as submitted by Trimatic in respect of
its central grounds of appeal.
[20] In Crozier v Palazzo Corporation Pty Ltd,4 a Full Bench of the Australian Industrial
Relations Commission considered then ss.170CG(3)(b) and (c) of the Workplace Relations
Act 1996 (Cth) (WR Act) which were in relevantly similar terms to ss.387(b) and (c) of the
FW Act. The Full Bench said:
“Notification
64 Section 170CG(3)(b) requires the Commission to have regard to ‘whether the
employee was notified of that reason’. The reference to ‘that reason’ is a
reference to the ‘valid reason’ for the employee’s termination. This is clear
from the juxtaposition of s 170CG(3)(a) and (b).
65 An issue arises as to what is meant by the word ‘notified’ in the context of
s 170CG(3)(b).
66 In the circumstances of the matter before us it is uncontested that Mr Crozier
was not notified of the reason for his termination before a decision was taken
to terminate his employment. Does s 170CG(3)(b) refer to the giving of notice
prior to a decision to terminate? Or is it sufficient if the employee is told of the
reason for termination after the employer has made the decision to terminate
their employment?
67 Looked at in isolation the word ‘notified’ in s 170CG(3)(b) is somewhat
ambiguous and may support either of the two interpretations advanced. We
think the first interpretation is to be preferred, for three reasons.
68 First, the interpretation we favour is consistent with one of the meanings
attributed to the word ‘notified’. The Oxford Dictionary states that one of the
meanings of the word ‘notify’ is ‘to intimate, give notice of, announce’.
69 Secondly, the Explanatory Memorandum relating to s 170CG(3) says:
‘7.43. Subsection 170CG(3) sets out the matters that the Commission must
have regard to in determining whether a termination was harsh, unjust
or unreasonable. These matters are:
[2013] FWCFB 5160
8
• whether there was a valid reason for the termination related to:
— the capacity or conduct of the employee; or
— the operational requirements of the employer’s undertaking,
establishment or service;
• whether the employee was notified of that reason;
• whether the employee was given the opportunity of responding to a
reason which related to the employee’s capacity or conduct;
• whether the employee had been warned about unsatisfactory
performance if the termination was based on unsatisfactory
performance; and
• any other matters the Commission considers relevant.
7.44. Affording employees procedural fairness in relation to a termination
will be relevant in establishing whether or not a termination is harsh,
unjust or unreasonable. However, as procedural fairness is to be only
one factor to be considered along with other relevant factors, the
intention is that undue weight will not be given to procedural defects in
a termination.’
70 Section 170CG(3)(b) and (c) are clearly related to the concept of ‘procedural
fairness’. The relevant principle is that a person should not exercise legal
power over another, to that person’s disadvantage and for a reason personal to
him or her, without first affording the affected person an opportunity to present
a case. This principle is a well established incident of public administrative
law. It is apparent from the Explanatory Memorandum that s 170CG(3)(b) and
(c) are intended to import the principle into Australian labour law.
71 Having regard to whether the employee was notified of the valid reason for his
or her termination before rather than after the decision to terminate his or her
employment is more consistent with the reference to procedural fairness set out
in the Explanatory Memorandum.
72 Thirdly, the interpretation we propose to adopt is consistent with the context in
which the provision appears, in particular its relationship with s 170CG(3)(c).
73 As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to
terminate their employment in order to provide them with an opportunity to
respond to the reason identified. Section 170CG(3)(b) and (c) would have
very little (if any) practical effect if it was sufficient to notify employees and
give them an opportunity to respond after a decision had been taken to
terminate their employment. Much like shutting the stable door after the horse
has bolted.
[2013] FWCFB 5160
9
74 We find that Mr Crozier was not notified of the valid reason which led to the
termination of his employment.
Opportunity to respond
75 Section 170CG(3)(c) provides that the Commission must have regard to
‘whether the employee was given an opportunity to respond to any reason
related to the capacity or conduct of the employee’. For the reasons we have
set out in relation to s 170CG(3)(b) we think that the ‘opportunity to respond’
referred to in s 170CG(3)(c) is a reference to any such opportunity which is
provided before a decision is taken to terminate the employee’s employment.
76 We find that Mr Crozier was not provided with an opportunity to respond to
the reason for his termination.” [Footnotes omitted]
[21] Trimatic took issue with the decision in Crozier, maintaining it has no foundation or
legal basis on the ordinary wording of ss.387(b) and (c) and is illogical and impractical5
“since an employer cannot inform an employee of a reason for termination prior to deciding to
terminate”.6
[22] Trimatic submitted that the legislative intention of ss.387(b) and (c) of the FW Act “is
to guard against employees being ‘ambushed’ and not (a) knowing their performance is poor
(the notification requirement) and (b) being given an opportunity to respond by seeking to
understand the issues and improve on their performance”.7 Further they submitted that
ss.387(b) and (c) of the FW Act are “completely silent as to the temporal point at which the
notification and opportunity to respond must occur”, there is “no wording to suggest this must
occur at the point of the dismissal” and “logic, legal principle and common sense would
suggest that these requirements should be met before termination is implemented otherwise it
would seem to defeat the intent and purpose of these provisions.”8
[23] We concur with the decision in Crozier in respect of then ss.170CG(3)(b) and (c) of
the WR Act, and now ss.387(b) and (c) of the FW Act. It deals with the issues raised by the
ordinary wording of now ss.387(b) and (c) of the FW Act. In respect of the other submissions
of Trimatic, we point out that the concept of “procedural fairness” can include the notion of
guarding against employees being “ambushed”. Further, their suggestion that ss.387(b) and
(c) are merely concerned with employees knowing their performance is poor and being given
an opportunity to understand the issues and improve on their performance makes s.387(e) of
the FW Act otiose. Moreover, unless the requirements of ss.387(b) and (c) are met before the
decision to dismiss is made, the intent and purpose of the provisions will be defeated. Of
course, what procedural fairness requires will depend on the circumstances.9
[24] The evidence before the Commissioner included that Mr Bowley was being
performance managed and was aware that if he failed to improve then termination of his
employment could be a likely consequence. On 26 September 2012, Mr Bowley was given a
formal warning letter regarding his unsatisfactory performance and a performance
management plan. In respect of possible disciplinary action against Mr Bowley, the
26 September 2012 letter said:
[2013] FWCFB 5160
10
“If by Friday, 26th October 2012, your behaviour, communication and overall
performance, remains unsatisfactory in the view of TSA, TSA will have no alternative
but to consider further disciplinary action, which may include terminating your
employment…
Our follow up weekly meetings will occur every Friday afternoon (a time will be set
each week, depending on combined availability) to provide an opportunity to discuss
your progress and encourage discussion of any issues…
Your are required to improve your performance to the satisfaction of TSA in
accordance with the Performance Management Plan by Friday, 12th October 2012.
TSA will continue to provide support, to assist you to improve and reach TSA’s
required standard.”10
[25] Ms Candace Chaudhury, the South Australian Centre Lead for Trimatic, conducted a
performance review with Mr Bowley on 4 October 2012 and followed up the review with a
detailed letter to Mr Bowley dated 11 October 2012 in respect of his performance.
[26] Ms Chaudhury again met with Mr Bowley on 17 October 2012. In respect of
Mr Bowley’s performance at that stage, Ms Chaudhury’s evidence was as follows:
“67. In our meeting on 17 October 2012, the campaign results were better as were
the sales results and he was on target for the week. His attitude and approach
were also better. We went through all the outstanding quality breaches and I
helped him close them so that there were only 10 outstanding, all of which
were justified. His sales results were positive but there were areas he said he
had been doing that still weren’t being done, in particular, SBS. There was no
week 7 expectation session completed with Joseph. Agents were not receiving
any action plans for their coaching sessions.
68. There was some improvement in Mr Bowley’s sales and NPS metric and
productivity.
69. The positive review was based on the results and an overall better attitude.
Compared to other managers he was on par but his sales results were still not
as good. Overall, he demonstrated some improvement. The NPS metric had
improved but overall he was still the lowest performer of all the floor
managers in South Australia.”11
[27] Ms Chaudhury followed up the 17 October 2012 meeting with a letter which, in part,
stated:
“Please be advised that due to the 3 days away from the office that your Performance
Improvement Plan will be extended an equivalent 3 days to. 4 meetings need to be
completed prior to finalizing the Performance Improvement Plan. The next meeting
will be Wednesday 24th October with the final meeting to be conducted Wednesday
31st October.”12
[28] Ms Chaudhury conducted another performance review with Mr Bowley on 25 October
2012.
[2013] FWCFB 5160
11
[29] Ms Chaudhury’s evidence was that during the performance management process in
October 2012, Mr Bowley was absent for quite a few days which interrupted the process and
there was also some downtime with Trimatic’s “IT” systems.
[30] Ms Chaudhury conducted another performance review with Mr Bowley on
2 November 2012 by which time she maintains Mr Bowley’s results had deteriorated.
However, the assessment of Mr Bowley’s performance that she sent in an email to
Ms Lawrence, National Human Resources Manager for Trimatic, on 5 November 2012
suggests there were improvements in many areas in respect of Mr Bowley.
[31] On 12 November 2012, Ms Chaudhury sent the following email to Ms Lawrence:
“Hi Sue,
Please find attached my notes from Daniel’s performance review last Monday.
Hopefully Dan is in the office on Tuesday for the review as he was on sick leave
today, I will let you know as soon as I have an update from him on whether I will need
to reschedule the review.
It is my opinion that the performance review process needs to be extended for a further
4 weeks.
Due to the Dialler and Siebel down time we’ve experienced it is hard to ascertain
whether the low sales results and productivity are only due to the down time, as other
teams have achieved strong sales results during the month of October. An example is
that Daniel’s team have been dialling two campaigns in particular PSTM and Top Hat,
Daniel has been achieve company target, but when I have trial the campaign in other
teams they have either hit target or overachieve the target. I think another 4 weeks
will uncover whether the actions Daniel has proposed to have put in place will achieve
the result.
I feel that in the last week Daniels attitude has dropped. Some examples are that he is
starting his own conversations when other Team Leaders are presenting their
information in my managers meetings and I feel some of the remarks he is starting to
make are borderline expectable. He has made some borderline remarks, and example
is changing the name of one of his agents in the manager meetings. The agent is
called Joseph Vaiana and in more than once meeting last week he called this agents
Joseph Vagina.
On Wednesday the 7th of November he conducted a 2½ hour SBS with a new female
agent. When I was observing what the Team Leaders were doing on the floor I
noticed he was typing messages on his mobile to a fiend whilst conducting the SBS he
was on his mobile for over 10 mins. Dan advised me the SBS took so long as he has
to help the agent provision all the products. The agent felt the SBS helped her when I
asked her, but a 2½ hour SBS with one agent when all of your campaigns are under
target for the day is only going to damage your results further as you have no
visibility.
[2013] FWCFB 5160
12
Daniel has been arriving at the office just on time eg 9.01 am, so his morning meetings
are not prepared for properly and his scheduled focus session are delayed (meant to
start at 9.15 am) but if you haven’t prepared in advance you have to take your agents
off calls later, which is disruptive.
I will put all of my concerns into the new Performance Review Document for
tomorrow’s meeting and send it to you shortly.
Regards
Candace Aditya Chaudhury | Centre Lead | Customer Experience & Sales”
[32] From 12 November 2012, Ms Chaudhury was away from Trimatic on annual leave.
[33] On 27 November 2012, Mr Animitray Chaudhury, the South Australian Centre
Manager for Trimatic, had a meeting with Mr Bowley at which he read out a letter
terminating Mr Bowley’s employment with Trimatic.
[34] It is apparent Mr Bowley was being performance managed and was aware that if he
failed to improve then termination of his employment could be a likely consequence. The
evidence of Ms Chaudhury, who was conducting his performance reviews, was that
Mr Bowley was told he had until 26 October 2012 to attain satisfactory performance.
Mr Bowley was subsequently given until 31 October 2012 to do so. On 12 November 2012
Ms Chaudhury advised the National Human Resources Manager for Trimatic that
Mr Bowley’s performance review process needed to be extended for a further four weeks due
to technological problems affecting the proper measurement of his performance. However,
without further relevant reference to Mr Bowley, Trimatic made the decision to terminate his
employment and did so.
[35] In the circumstances we think the Commissioner rightly had regard to the decision in
Crozier and rightly concluded Mr Bowley’s dismissal was deficient in procedural fairness as
required by ss.387(b) and (c) of the FW Act.
[36] Further, in respect of Trimatic’s central ground of appeal, it is apparent from the
Commissioner’s decision that his consideration of whether he was satisfied Mr Bowley’s
dismissal was harsh, unjust or unreasonable was made in the context of his findings in respect
of the matters in ss.387(a) to (h) of the FW Act. Ultimately, amongst all those matters the
relative weight of the procedural fairness deficiencies in the dismissal and the personal and
economic consequences for Mr Bowley of the dismissal resulted in the Commissioner
concluding the dismissal was harsh. We think that conclusion was reasonably open to him.
[37] There are decisions of the FWC and its predecessors in which the absence of
procedural fairness, including that associated with now s.387(e) of the FW Act, has not
resulted in the FWC or its predecessors being satisfied a dismissal was harsh, unjust or
unreasonable. However, as the Full Bench in Crozier pointed out in deciding the termination
of Mr Crozier’s employment was not harsh, unjust or unreasonable, the result in Crozier’s
case turned “on its own facts”13 and “[i]n other circumstances the absence of procedural
fairness evident in [Crozier’s] case may lead to a conclusion that the termination was harsh,
unjust or unreasonable.”14
[2013] FWCFB 5160
13
[38] In this case it is apparent that it was more than the lack of procedural fairness afforded
Mr Bowley by Trimatic that resulted in the Commissioner concluding Mr Bowley’s dismissal
was harsh.
[39] It follows that we are not persuaded that the Commissioner misconstrued and
misapplied ss.387(b) and (c) of the FW Act or erred in respect of Crozier. Nor are we
persuaded that on the evidence the Commissioner erred in concluding that, having regard to
his findings on the matters in ss.387(b) and (c) of the FW Act, the dismissal of Mr Bowley
was lacking in procedural fairness. Further, we are not persuaded the Commissioner’s
conclusion that Mr Bowley’s dismissal was harsh was erroneously reached through an
improper account of the totality of the s.387 criteria and the placement of undue and improper
weight on one procedural defect by Trimatic.
Conclusion
[40] For the foregoing reasons, we are not persuaded the Commissioner’s decision in
respect of Mr Bowley’s unfair dismissal remedy application against Trimatic involves a
significant error of fact or is affected by other appealable error. Nor do we consider it is in
the public interest or otherwise for us to grant permission to appeal. Trimatic has not
established the public interest grounds they advanced for permission to appeal being granted.
We refuse Trimatic permission to appeal and, to the extent necessary, dismiss their appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
D. Heldsinger of counsel for Trimatic Management Services Pty Ltd.
D. Bowley on his own behalf.
Hearing details:
2013.
Adelaide:
July 2.
Endnotes:
1 Mr Daniel Bowley v Trimatic Management Services Pty Ltd, [2013] FWC 2533.
2 Mr Daniel Bowley v Trimatic Management Services Pty Ltd, [2013] FWC 2533 at [3].
3 Mr Daniel Bowley v Trimatic Management Services Pty Ltd, [2013] FWC 2533 at [45].
4 (2000) 98 IR 137.
5 Appeal exhibit A1 at 5.2.
6 Appeal exhibit A1 at 5.3.
7 Appeal exhibit A1 at 4.5.
WORK CO MISSION AUSTRALIA SEAL OF FAIR THE
[2013] FWCFB 5160
14
8 Appeal exhibit A1 at 4.7.
9 Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation, 113 CLR 475 at 503-504.
10 Appeal book at p.247.
11 Appeal book at pp.236-237.
12 Appeal book at p.264.
13 Crozier v Palazzo Corporation Pty Ltd, [2000] 98 IR 137 at 153.
14 Ibid.
Printed by authority of the Commonwealth Government Printer
Price code C, PR539522
