1
Fair Work Act 2009
s.604 - Appeal of decisions
Malcolm Pearson
v
Linfox Australia Pty Ltd
(C2014/2944)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
DEPUTY PRESIDENT KOVACIC
COMMISSIONER ROE
ADELAIDE, 19 MARCH 2014
Appeal against decision [2014] FWC 446 of Commissioner Gregory at Melbourne on 17
January 2014 in matter number U2013/10095 - unfair dismissal - appeal principles - public
interest - no significant errors of fact established.
[1] Mr Pearson seeks permission to appeal against a decision of Commissioner Gregory
issued on 17 January 20141. In that decision, the Commissioner dismissed Mr Pearson’s
unfair dismissal application made under s.394 of the FW Act with respect to the termination
of his employment with Linfox.
[2] Mr Pearson’s appeal application was the subject of a hearing on 14 March 2014. At
that hearing Mr Pearson represented himself. We considered submissions made with respect
to a grant of permission for Linfox Australia Pty Ltd (Linfox) to be represented by Ms Sweet,
of counsel. This request was granted pursuant to s.596(2)(a) of the Fair Work Act 2009 (the
FW Act). In that respect we were satisfied that this permission would enable the appeal to be
dealt with more efficiently, given that Ms Sweet represented Linfox at first instance, that Ms
Sweet had provided comprehensive and helpful written submissions on the appeal and that the
program established by the appeal directions meant that a delay in the proceedings was a
likely corollary of refusal of this request. Our grant of permission was conditional in that we
reserved the right to withdraw permission if we considered that appropriate and we extended
to Mr Pearson the opportunity to seek advice from the Full Bench on issues of concern to him
or, additionally, to request a delay in the proceedings whilst he sought external advice.
[3] In the decision under appeal, the Commissioner found that the combination of a
number of factors taken into account by Linfox represented a valid reason for the termination
of Mr Pearson’s employment. He set out his conclusion in the following terms:
“[51] In all the circumstances I am satisfied Linfox had a valid reason to dismiss Mr
Pearson based on an objective analysis of the relevant facts. The individual instances
concerning his conduct may not in isolation have justified his dismissal. However, in a
similar way to the conclusion reached by Sams DP in Dickinson v Calstores Pty Ltd 20
his conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated
[2014] FWCFB 1870
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 1870
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a repeated disregard for and refusal to comply with the policies and procedures Linfox
had in place in the Distribution Centre. I am satisfied in those circumstances his
conduct constituted a valid reason for termination.”
[4] The Commissioner then considered each of the remaining factors set out in s.387 of
the FW Act before concluding that the termination of Mr Pearson’s employment was neither
harsh, unjust nor unreasonable.
[5] Section 400 of the FW Act requires that two requirements for an appeal must be met.
This section states:
“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.”
[6] Subsection (1) requires that permission not be granted unless it is in the public interest
to do so. Subsection (2) only allows an appeal to be made on a question of fact on the basis
that the decision involved a significant error of fact.
[7] We have taken Mr Pearson’s self represented standing into account in considering his
appeal. Notwithstanding this, Mr Pearson’s appeal fundamentally represents a request to have
his case heard again on the basis that he disagrees with the Commissioner’s conclusions. In
summary form, his appeal was made on the grounds that the Commissioner’s findings that a
number of the instances which collectively represented a valid reason for the employment
termination were erroneous2. Further, that the Commissioner failed to properly take into
account all of or give adequate weight to aspects of the evidence before him with respect to
certain of these instances.3 Thirdly, that the Commissioner was not impartial in his approach.4
Mr Pearson asserts that the Commissioner should have ruled on whether the Linfox social
media policy infringed on his right to free speech.5 He asserts that the Commissioner
erroneously relied on various authorities in his consideration of whether there was a valid
reason for the termination of his employment.6 In his submissions to us, Mr Pearson asserts
that he was not given a fair opportunity to call witnesses in support of his position although he
accepts that he chose not to seek orders which would have required persons to attend the
hearing at first instance. In advance of the appeal hearing Mr Pearson foreshadowed a request
to call numerous new witnesses to support his contentions. Mr Pearson was advised that, in
the event that the Full Bench considered additional evidence was appropriate a hearing for
this purpose would be arranged but that consideration of ss.400 and 604 would be critical to
the position we adopted in this respect.
[8] We have reviewed the decision and are not satisfied that Mr Pearson has identified any
unfairness on the part of the Commissioner in terms of the conduct of the matter before him.
We are similarly not satisfied that there are any significant errors of fact in the findings made
by the Commissioner on the evidence before him. We are satisfied that the conclusions
[2014] FWCFB 1870
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reached by the Commissioner were reasonably open to him, that the Commissioner’s
approach to the application met the requirements of a fair go all-round and appropriately took
into account the factors identified in s.387 of the FW Act. Further, as no issues of public
interest arise, pursuant to s.400(1), we must therefore refuse Mr Pearson’s application for
permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
M Pearson on his own behalf.
R Sweet counsel for Linfox Australia Pty Ltd
Hearing details:
2014.
Melbourne:
March 14.
Printed by authority of the Commonwealth Government Printer
Price code A, PR548801
1 [2014] FWC 446
2 Appeal Grounds 1,2,3,4,16,18
3 Appeal Grounds 5,6,7,8,11,17
4 Appeal Grounds 12,13,14,15
5 Appeal Ground 9
6 Appeal Ground 10
THE FAIR WORK AUSTRALIA MMISSION THE SEAA
