1
Fair Work Act 2009
s.604—Appeal of decision
KDR Victoria Pty Ltd T/A Yarra Trams
v
N Farmer
(C2014/6736)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT SMITH
COMMISSIONER RYAN MELBOURNE, 4 FEBRUARY 2015
Appeal against decision [[2014] FWC 6539] of Commissioner Wilson at Melbourne on
22 September 2014 in matter number U2014/5560 – Permission to appeal is refused.
[1] This is an appeal, pursuant to s.604 of the Fair Work Act 2009 (the Act) by
KDR Victoria Pty Ltd T/A Yarra Trams (the Appellant) against a decision of 22 September
2014 by Commissioner Wilson1 in which he found that the termination of employment of
Mr N Farmer (the Respondent) was harsh and that he was dismissed unfairly within the
meaning of s.385 of the Act.
[2] The Respondent was dismissed by the Appellant on the basis of “a serious and
repeated breach of Yarra Trams Rules and Procedures” with respect of “Cardinal Rule 2:
Hand Held Mobile Devices, Rule 9(3): General Conduct and Rule 23: Driver Distractions”,
following an investigation of a report to the Appellant by a team leader and her companion
(the incident witnesses) that they had witnessed the Respondent looking at a mobile telephone
in his right hand as he crossed an intersection when driving a tram.
Approach to the appeal
[3] Section 604(1) of the Act provides for an appeal against a decision by a Member of the
Fair Work Commission (the Commission) which is 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”.
[4] 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, be made on the ground that the decision involved a significant error of fact”.
[5] It is clear from s.604 of the Act and, in respect of termination of employment matters,
s.400 that the appeal process in the Act does not provide an opportunity for a party to re-argue
[2015] FWCFB 454
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 454
2
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.
Appeal grounds
[6] The appeal is unusual insofar as the Appellant does not challenge any of the findings
of fact made by Commissioner Wilson on the basis of the evidence before him.2
[7] The Appellant raised eight appeal grounds, which in its oral submissions were dealt
with as three areas of alleged error:
1. Whether a valid reason existed: the Appellant submitted that Commissioner
Wilson “applied the wrong test and drew the wrong conclusion in relation to
the question of valid reason. He should have found that there was a valid
reason within the meaning of section 387(a)”;3
2. Whether the Respondent was afforded an opportunity to respond to any reason
for the termination related to the capacity or conduct: the Appellant submitted
that the substance of the allegations were put to the Respondent, he had an
“opportunity to respond and that additional requirements, such as provision of
documents that the Commissioner had regard to are irrelevant considerations,
and he applied the wrong test and caused himself to fall into error in the sense
of House v The King”;4 and
3. Whether the termination was harsh, unjust or unreasonable: the Appellant
submitted that once it was accepted that “there is the valid reason and there
was a proper opportunity to respond, then there has to be, in this case, a
conclusion that the termination was not harsh, unjust or unreasonable”.5
The decision of Commissioner Wilson
[8] Commissioner Wilson records in his decision evidence that the Appellant had in place
‘Rules and Procedures’, which include “Cardinal Rules”.6 It refers to “hand-held mobile
devices” and states:
“NEVER operate a tram, plant or machinery while using a handheld mobile device.”
[9] Rules 9(3) of the Appellant’s Rules and Procedures provides the following:
“9 General Conduct (in the category of ‘Customers’) . . .
3. Drivers must not behave in any way likely to put public safety in
danger or undermine public confidence.”
[2015] FWCFB 454
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[10] Rule 23 of the Appellant’s Rules and Procedures states:
“23 Driver Distractions (in the category of ‘Tram Services’)
‘1. Drivers must not allow themselves to be distracted while their tram is
in motion.
2. Drivers are to acknowledge passenger enquiries but must not
communicate further until the tram is stationary.
3. The operation of any type of mobile phone, transistor radio,
multimedia device or any other electronic equipment by drivers while in
control of a moving or stationary tram is not permitted (except for
hearing aids). This equipment must be switched off while the tram is in
operation but may be turned on at a terminus.
4. Drivers must not wear any type of headphones or earpiece while in
control of a moving or stationary tram, even if the headphone or
earpiece is not connected.
5. Drivers must not read while in control of a moving or stationary
tram. Only table cards may be read when the tram is stationary.
6. Drivers must not be distracted from driving when consuming food
and/or beverages.’”
[11] Rules 23(1) and (3) were immediately relevant in the proceedings before the
Commissioner.
[12] The Appellant terminated the employment of the Respondent on the basis of a breach
of Cardinal Rule 2 and a breach of Rule 9(3) (General conduct) and Rule 23 (Driver
Distractions).
[13] In respect of valid reason, Commissioner Wilson’s findings were as follows:
Whilst satisfied that incident witnesses saw the Respondent driving the tram as it
“crossed the intersection”, with a “black object in his hand” which he was “visually
inspecting”, Commissioner Wilson was not satisfied that they saw the Respondent
“using his mobile either texting or scrolling whilst his tram was in motion” which
is the principal allegation relied upon by the Appellant in terminating the
Respondent’s employment. The Commissioner was not satisfied that the object was
a mobile telephone.7
The Commissioner was unable to find that the Respondent operated a tram while
using a handheld mobile device given the evidence and the findings he had made.8
The Commissioner was not satisfied that the Respondent “behaved in a way likely
to put public safety in danger (which might amount to a breach of sub-rule 9 (3))”
[2015] FWCFB 454
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in retrieving contents which had spilled from his personal bag,9 including his
auxillary charger.
The Commissioner found that the Respondent’s action of “inspecting the auxiliary
charger as he crossed the intersection could undermine public confidence, which
would amount to a breach of sub-rule 9 (3)”,10 but there was no evidence about the
“relative severity of such a breach” on public confidence. The Respondent had
picked up the charger after it had spilled from his bag.
The Commissioner was satisfied that the Respondent “allowed himself to be
distracted whilst his tram was in motion (which is a breach of sub-rule 23 (3))”.11
He found that the Respondent had his “personal effects bag with him” on the tram
and “that it was open” and on the “balance of probabilities, the bag would similarly
tip over and spill its contents”12 and distract the Respondent. He found that the
Respondent “allowed himself to be distracted while his tram was in motion” by the
spillage of items from his personal bag.
[14] In respect of valid reason, Commissioner Wilson concluded:
“[55] On balance, and after finding that Mr Farmer did not breach Cardinal Rule 2,
but that he breached Rules 9 and 23, I consider Yarra Trams did not have a valid
reason to dismiss Mr Farmer when it did. The breaches of sub-rule 9 and Rule 23 are,
in context, important matters, but not so significant as to amount to a valid reason to
dismiss. The breach of rule 23 potentially led to the breach of sub-rule 9. That is, by
allowing his personal effects bag to be in a position to tip and spill, Mr Farmer then
needed to retrieve the items that spilled. While he should not have inspected the
charger after he picked it up, he did. There is, however, insufficient evidence before
me to lead to the view that those actions, of themselves, would reasonably lead to such
an undermining of public confidence as would require or allow Yarra Trams to dismiss
Mr Farmer.
. . .
[58] As a result, I find that, in the context of the whole of the evidence, Yarra
Trams did [not have] a valid reason for dismissal of Mr Farmer.”
[15] In respect of the opportunity afforded to the Respondent to respond to the reasons for
his termination, Commissioner Wilson found that in the particular circumstances of the
investigation and the preparation of a report relied on to dismiss the Respondent, he was
“entitled to see the product of the investigation and the recommendation it made as soon as it
was completed”.13 In light of this and his “impression” from the evidence in relation to the
engagement of the Appellant’s representative with the Respondent’s response during the
meeting at which his employment was terminated,14 the Commissioner was not satisfied that
the Respondent was “accorded an opportunity to provide and have considered by Yarra Trams
a defence of substance that would then be weighed and taken into account before it made its
decision” to terminate his employment.15
[16] Weighing up his findings on the statutory matters within s.387 of the Act,
Commissioner Wilson found the “dismissal was harsh and that accordingly [the Respondent]
was unfairly dismissed within the meaning of the Act”.16
[2015] FWCFB 454
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Consideration
[17] We will consider the appeal grounds within the three broad areas identified by the
Appellant in its oral submissions.
Valid reason
[18] The Appellant submitted that Commissioner Wilson erred in not holding that the two
breaches of its Rules and Procedures found by him constituted a valid reason for the
termination of the Respondent’s employment. It submitted that a breach by an employee of a
properly founded employer rule provided a “sound, defensible or well founded”17 reason for
the termination of the employee’s employment and, having found two breaches of the
Appellant’s rules, the Commissioner erred in not finding that there was a valid reason for the
termination.
[19] In support of that contention the Appellant submitted that the Commissioner erred in
giving consideration to the nature of breach, with any issue of the proportionality of dismissal
as the consequence of the breach being a matter to be considered under s.387(h) of the Act –
“any other matters that the FWC considers relevant”.
[20] The Appellant also submitted that the Commissioner impermissibly introduced
degrees of valid reason into his consideration in finding breaches of Rules 9(3) and 23(3). The
Appellant’s rules were “not so significant as to amount to a valid reason to dismiss”18 and in
not being satisfied that the breach of Rule 23(3) “rises to the level of it forming a valid reason
for his dismissal”.19
[21] This appeal ground misconceives the statutory responsibility on the Commissioner in
respect of s.387(a) of the Act and the reasoning of the Commissioner in meeting that statutory
responsibility.
[22] The Commissioner was required to determine whether the dismissal was harsh, unjust
or unreasonable, taking into account the statutory considerations within s.387 of the Act to the
“extent that they are relevant”.20 Section 387(a) required him to consider and find “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)”. The question of whether
the conduct provided a valid reason for termination took place and what it involved was to be
determined by the Commissioner on the basis of the evidence in the proceedings before him.21
[23] The Appellant’s contention that the breach of a sound rule of an employer
automatically required a finding that it constituted a valid reason for termination, would
remove from the Commission the responsibility to determine for itself, whether it was a valid
reason for termination, having regard to the nature and circumstances of the conduct. Whether
conduct in breach of a rule or policy of an employer provides a valid reason for termination of
employment will depend on the particular circumstances, including the nature and purpose of
the rule or policy and on the nature of the conduct, having regard to the evidence about it, and
is a judgement the Commission is required to make for itself.
[24] In reaching his finding as to valid reason, Commissioner Wilson did not introduce
degrees of valid reason, as argued by the Appellant. In stating that the Respondent breached
[2015] FWCFB 454
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two rules of the Appellant were not so significant as to be or did not rise to the level of being
a valid reason for termination, the Commissioner said no more than that particular conduct of
the Respondent did not constitute a valid reason for the termination, which was the finding
that Commissioner Wilson ultimately made.
[25] Commissioner Wilson addressed himself as to whether there was a valid reason for the
dismissal of the Respondent on the basis of his conduct. He found that there was not a “valid
reason for dismissal”.22 He was entitled to reach that finding on the evidence before him. The
Commissioner’s approach to and findings in relation to valid reason do not reflect error.
Opportunity to respond
[26] The Appellant submitted that Commissioner erred in holding that the Respondent and
“his representative were entitled to see the product of the investigation and the
recommendation it made as soon as it was completed”23 and concluding that he was not
satisfied that the Respondent was “accorded an opportunity to provide and have considered by
Yarra Trams a defence of substance”.24 It submitted that the Commissioner impermissibly
introduced into s.387(c) of the Act, a rule that a dismissed employee is entitled to see the
product of an investigation in relation to a dismissal in place of or in elaboration of the
statutory test of whether the employee “was given an opportunity to respond to any reason”
for the dismissal related to their conduct.
[27] The finding of the Commissioner in relation to the investigation report did not
constitute the creation of a general rule in relation to the provision of such reports to
employees or augment or displace the statutory test in s.387(c) of the Act as applied by the
Commissioner. His proposition that the Respondent was entitled to see the report arose from
the particular circumstances of the matter. There is no general rule to this effect otherwise.
Commissioner Wilson’s finding that the Respondent was not afforded an opportunity to put a
defence of substance to the allegations raised against him prior to the decision to terminate his
employment went beyond that finding, relying also on his impression from the evidence about
the Appellant’s representative’s engagement with the response of the Respondent to the
matters put to him.
[28] We are satisfied that the Commissioner properly considered the matter he was required
to consider by s.387(c) of the Act and that his finding was available to him on the evidence.
Error in balancing s.387 findings
[29] The Appellant submitted that the Commissioner erred in concluding25 that the
dismissal was harsh, and should have held (having regard to all of the relevant factors in s.387
of the Act) that the dismissal was not harsh, unjust or unreasonable.
[30] Having regard to the Commissioner’s findings as to the other s.387 matters, this final
appeal ground is unsustainable, absent an error by the Commissioner in finding that the
Respondent’s conduct did not constitute a valid reason for termination, even if he was wrong
in finding that the Respondent was not afforded an opportunity to put a defence of substance
to the allegations raised against him prior to the decision to terminate his employment.
[2015] FWCFB 454
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[31] No error is disclosed in the Commissioner’s conclusion that the termination was harsh,
having regard to the balancing by him of his s.387 findings, which we have found do not
themselves reflect error.
Conclusion
[32] The Appellant submitted that the appeal raises issues of significant public interest
concerning public transport and drivers’ obligations to avoid distraction in the interests of
public safety and the Appellant’s Rules and Procedures directed to the safety of the travelling
public. The public interest is not automatically attracted to an appeal involving safety issues in
the relation to public transport. Whether an appeal which raises safety issues attracts the
public interest requires a “case by case consideration”.26
[33] The current appeal essentially goes to the assessment by the Commissioner of the
conduct of the Respondent and the process afforded to him in respect of the dismissal and the
Commissioner’s balancing of the relevant statutory considerations in the particular
circumstances of the matter before him, including the importance and purpose of the
Appellant’s safety rules to which the Commissioner had regard. Whether or not we would
have reached the same conclusion is not at issue absent error. We are not persuaded that the
issues raised on appeal raise questions of public interest.
[34] Having regard to the circumstances of this matter and the absence of error in the
decision of Commissioner Wilson, we are not persuaded that the appeal raises issues of public
interest which warrant the grant of permission to appeal.
[35] We refuse permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
M Rinaldi of Counsel for the Appellant.
S Keating of Counsel for the Respondent.
Hearing details:
2015:
Melbourne;
January 14.
Printed by authority of the Commonwealth Government Printer
Price code C, PR560193
[2015] FWCFB 454
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1 [2014] FWC 6539.
2 Transcript, at para 22.
3 Transcript, at para 8.
4 Transcript, at para 9.
5 Transcript, at para 76.
6 [2014] FWC 6539, at para 46.
7 [2014] FWC 6539, at paras 44–45.
8 [2014] FWC 6539, at para 54.
9 [2014] FWC 6539, at para 54.
10 [2014] FWC 6539, at para 54.
11 [2014] FWC 6539, at para 54.
12 [2014] FWC 6539, at para 54.
13 [2014] FWC 6539, at para 63.
14 [2014] FWC 6539, at para 65.
15 [2014] FWC 6539, at para 66.
16 [2014] FWC 6539, at para 80.
17 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, at 373.
18 [2014] FWC 6539, at para 55.
19 [2014] FWC 6539, at para 54.
20 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, at para 14 and Chubb Security Australia Pty Ltd v Thomas, Print S2679, at
paras 38–41.
21 King v Freshmore (Vic) Pty Ltd, Print S4213, at para 24.
22 [2014] FWC 6539, at paras 55 and 58.
23 [2014] FWC 6539, at para 63.
24 [2014] FWC 6539, at para 66.
25 [2014] FWC 6539, at para 80.
26 Harbour City Ferries Pty Ltd v Toms, [2014] FWCFB 6249, at para 16.
