1
Fair Work Act 2009
s.604 - Appeal of decisions
David Armstrong
v
Taxation Management Services Pty Ltd ATF TMS
(C2015/5234)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER ROE
MELBOURNE, 6 OCTOBER 2015
Appeal against decision [[2015] FWC 4879] of Commissioner Riordan at Sydney on 6 August
2015 in matter number U2014/1566 – Permission to appeal – Whether grounds of appeal
attract the public interest – Permission to appeal granted – Fair Work Act 2009 - ss. 394,
400, and 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of
Commissioner Riordan handed down on 6 August 2015. The decision of the Commissioner
concerned an unfair dismissal application made by David Armstrong on 2 May 2014 under
s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by
Taxation Management Services Pty Ltd ATF TMS (TMS)
[2] At the hearing of the appeal matter on 30 September 2015, Mr D. Armstrong appeared
on his own behalf and Mr J. Hoff appeared for TMS.
Background
[3] Mr Armstrong was employed by TMS as an accountant in October 2011. He was
allegedly dismissed on 11 March 2014 with an extended notice period and then summarily
dismissed on 11 April 2014. This was due to a view formed by Mr Hoff, owner and principal
of TMS, that Mr Armstrong was trying to disadvantage TMS. Mr Hoff also held a strong
opinion that Mr Armstrong was responsible for the TMS office being broken into on the
evening of 9 April 2014.
[4] The Commissioner correctly determined that TMS is a Small Business and that the
dismissal could not be considered to be unfair if it was consistent with the Small Business
Fair Dismissal Code: s.385 of the Act. The decision of the Commissioner dealt with the issue
of whether the summary dismissal was consistent with the Small Business Fair Dismissal
Code on the basis that if it was found that TMS had acted in accordance with the Code, then
[2015] FWCFB 6789
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 6789
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other issues in relation to the alleged March dismissal became irrelevant. The Code states the
following in relation to Summary Dismissal:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the
employer believes on reasonable grounds that the employee’s conduct is sufficiently
serious to justify immediate dismissal. Serious misconduct includes theft, fraud,
violence and serious breaches of occupational health and safety procedures. For a
dismissal to be deemed fair it is sufficient, though not essential, that an allegation of
theft, fraud or violence be reported to the police. Of course, the employer must have
reasonable grounds for making the report.”
[5] The Commissioner’s conclusions are expressed in the following passage from his
decision:
“[27] … The question is whether Mr Hoff believed that Mr Armstrong’s conduct
was serious enough to justify his summary dismissal and whether he had reasonable
grounds in coming to that conclusion.
[28] After taking into account all of the submissions and volumes of evidence
submitted by the parties at the reasoning of the Full Bench in Pinawin v Domingo, I
find that Mr Hoff did have reasonable grounds for reaching the conclusion to
summarily dismiss Mr Armstrong in accordance with the Small Business Fair
Dismissal Code. It is peculiar in the extreme that a thief would break into an office,
steal only items that were linked to a recently dismissed and suspended employee, log
on to a computer using the login details and password of the recently dismissed
employee and steal unspecified information from the computer system, then leave
without taking any good or chattel of any monetary value.
[29] Mr Armstrong’s application for an unfair dismissal remedy is dismissed. Having
found that Mr Armstrong’s summary dismissal was in accordance with the Act, it is
not necessary for me to deal with the issue of the alleged dismissal on 11 March
2014.”
Grounds of Appeal
[6] Mr Armstrong submits that permission to appeal should be granted as the
Commissioner’s decision contains significant errors of fact that arise from the disclosure of
new evidence. He contends that the Commissioner based his decision on Mr Hoff’s evidence
that a relevant client billing sheet/file was no longer in existence and that it was this missing
document that was the catalyst for the breakdown of the relationship between Mr Armstrong
and TMS. Mr Armstrong asserted that this client billing sheet/file has now been found and
was provided to the client’s new advisor by Mr Hoff in correspondence since the hearing of
the matter. He submits that if this information was available to the Commissioner at the time a
different conclusion would have been reached.
[7] Mr Armstrong also submits that Mr Hoff made other misrepresentations to the
Commission regarding password restrictions and access through the TMS office front door in
his evidence to the Commission. Mr Armstrong submits that the effect of these errors is that
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his contention that there was no actual break-in at or theft from, the business premises should
have been accepted.
Permission to Appeal
[8] An appeal in relation to an unfair dismissal matter is governed by the provisions of ss.
604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These
requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which
provides:
“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.”
[9] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with
whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent
one’1. The Commission must not grant permission to appeal unless it considers that it is ‘in
the public interest to do so’
[10] The test for determining the public interest has been described as follows:2
“[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and we do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made to be made by reference
to undefined factual matters, confined only by the objects of the legislation in question.
[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing
O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in
this case.”
[11] It is also important to note that the decision under appeal is of a discretionary nature.
Usually such a decision can only be successfully challenged on appeal if it is shown that the
discretion was not exercised correctly.3 It is not open to an appeal bench to substitute its view
on the matters that fell for determination before the Commissioner in the absence of error of
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an appealable nature in the decision at first instance. As the High Court said in House v The
King:4
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Conclusion
[12] This is a very unusual case. Mr Hoff contends that he had a reasonable basis for
believing that Mr Armstrong broke into his office and stole certain documentation. Mr
Armstrong denies doing so and now wishes to bring evidence that suggests that no break-in
occurred. The case requires a careful consideration of all of the evidence. However, some
evidence, which could be highly relevant to the findings of fact necessary to determine the
matter, was not put to the Commissioner because it was not then known or available to Mr
Armstrong.
[13] The Act establishes a lesser test for establishing fairness for small business summary
dismissals compared to summary dismissals in larger businesses. Nevertheless, it is consistent
with the proper application of that test that it is exercised with the benefit of all available
evidence. We make no criticism of the Commissioner’s conclusions based on the evidence
before him. However we consider that an injustice may occur if an opportunity to call and test
all currently available evidence is not provided. We have therefore decided to grant
permission to appeal and enable the appeal to proceed with the benefit of additional evidence.
The appeal will be determined after hearing that evidence and considering it in conjunction
with the evidence led before the Commissioner. We will admit further evidence of the nature
foreshadowed by Mr Armstrong together with any further evidence in reply by Mr Hoff.
[14] Directions will be issued for the filing of additional witness statements and
documentation in advance of the hearing of the appeal.
VICE PRESIDENT
THE OF THE FAIR WORK C. SEN THE NOISS
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Appearances:
Mr D. Armstrong on his own behalf.
Mr J. Hoff for TMS.
Hearing details:
2015.
Melbourne – Video and Telephone Link to Perth.
30 September.
Final written submissions:
Mr D. Armstrong on 16 September 2015.
TMS on 29 September 2015.
Printed by authority of the Commonwealth Government Printer
Price code C, PR572508
1 (2011) 192 FCR 78 at paragraph 43.
2 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
