1
Fair Work Act 2009
s.604 - Appeal of decisions
Adam O'Connell
v
Wesfarmers Kleenheat Gas Pty Ltd t/a Kleenheat Gas
(C2015/7189)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT BULL SYDNEY, 18 DECEMBER 2015
Permission to appeal against decision [[2015] FWC 7011] and order [PR572951] of
Commissioner Cloghan at Perth on 14 October 2015 in matter number U2014/13720.
Introduction
[1] Mr Adam O’Connell has filed a notice of appeal under s.604 of the Fair Work Act
2009 (FW Act) in which he seeks permission to appeal against a decision of Commissioner
Cloghan issued on 14 October 20151 (Decision) and an order issued on the same date2 which
dismissed his application for an unfair dismissal remedy against his former employer,
Wesfarmers Kleenheat Gas Pty Ltd trading as Kleenheat Gas (Kleenheat).
[2] Mr O’Connell was, prior to his dismissal, employed by Kleenheat as a salesperson. He
had been employed in that capacity for over 18 years. The primary matter which led to his
dismissal was an incident which occurred at a sales conference at the Vines Hotel on the
evening of 15 September 2014. It was alleged against him that while drinking with work
colleagues at an “open bar” session funded by Kleenheat, Mr O’Connell engaged in verbal
and threatening abuse of another employee, Mr Jordan Ritchie. In the course of an
investigation into this incident, further allegations about instances of misconduct on Mr
O’Connell’s part arose, namely:
(1) He had carried on a private vacation property rental business by use of his
work email and mobile phone, in breach of Kleenheat’s Electronic Usage
Policy and his contract of employment.
(2) He had disobeyed a lawful request not to drive his work vehicle whilst he was
stood down during the investigation.
1 [2015] FWC 7011
2 PR572951
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DECISION
E AUSTRALIA FairWork Commission
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2
(3) He had driven the work vehicle recklessly on 26 September 2014, resulting in
a complaint from a member of the public, and with the potential of putting
himself, others and Kleenheat’s reputation at risk.
(4) He had punched a fellow employee at a sales conference which took place in
or around May 2005.
[3] On 22 October 2014 Mr O’Connell was summarily dismissed on the basis of all of the
above allegations.
[4] In the Decision the Commissioner first considered whether the allegations which
formed the reasons for the dismissal constituted a valid reason for the dismissal for the
purposes of s.387(a) of the FW Act. In relation to the incident at the Vines Hotel on 15
September 2014, the Commissioner had to resolve a conflict in the evidence concerning what
was actually said by Mr O’Connell and the circumstances in which it was said. The
Commissioner preferred the evidence of the witnesses other than Mr O’Connell, including
that of the target of the abuse, Mr Ritchie. Mr Ritchie’s original account of the incident was
described by the Commissioner as follows:
“[34] The relevant parts of the documents are that Mr O’Connell said to Mr Ritchie,
over a period of 15 to 20 minutes, on a number of occasions, ‘I fucking hate you’,
‘fuck off’, ‘drop dead’, ‘fuck off and die’, ‘go kill myself’ and ‘every time I see you I
just want to punch you in the face’. After this initial exchange between Mr O’Connell
and Mr Ritchie, Mr Ritchie left the bar.
[35] After 20 minutes, Mr Ritchie returned to the bar and states that he sought the
basis of Mr O’Connell’s verbal ‘barrage’ and states, ‘I asked Adam whether it was the
fact that I currently drive the Hilux that was previously his work vehicle which was
causing the issue between them, and his answer was, ‘yes it is’.
[36] Mr O’Connell then told him to ‘fuck off out of my face’ to which Mr Ritchie
responded ‘tonight you’ve confirmed what a pathetic person you are and I am not the
only person who thinks so’ and ‘you’re a train wreck of a human being’.”
[5] The Commissioner went on to make the following finding concerning Mr O’Connell’s
responsibility for the incident:
“[57] While Mr O’Connell has attempted to lay the blame for the incident at the door of
the Employer or Mr Hall, for a culture of heavy drinking, this incident, in my view,
comes down to Mr O’Connell’s dislike for Mr Ritchie. Even if the Employer had
taken a more responsible approach to the serving of alcohol on the evening, in my
view, the striking feature of the evening was not its histrionics, but the vehement,
forceful, threatening behaviour of Mr O'Connell towards Mr Ritchie, for no other
reason than he does not like him.”
[6] The Commissioner determined that Mr O’Connell’s conduct was contrary to
Kleenheat’s Code of Conduct, which he found applied in “circumstances outside the
workplace and working hours, such as the conference at the Vines Hotel”, and also its
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Harassment and Bullying Policy.3 In relation to the other allegations, the Commissioner found
that they all occurred as alleged. With the exception of the final allegation concerning the
punch at the 2005 sales conference, which the Commissioner did not endorse as a reason for
dismissal because there had been no complaint and it was too distant in time, the
Commissioner found that the allegations taken in totality constituted a valid reason for
dismissal.
[7] The Commissioner considered all of the matters he was required to consider under
s.387. In relation to paragraphs 387(b) and (c), the Commissioner found in substance that Mr
O’Connell was afforded procedural fairness. In relation to paragraph 387(e), the
Commissioner did not accept Mr O’Connell’s submission that he had an “exemplary work
history”.4 In relation to paragraph 387(h), the Commissioner took into account the economic
and personal consequences of the dismissal for Mr O’Connell, but balanced this against the
conduct which he had engaged in, especially the conduct at the Vines Hotel on 15 September
2014, and said “I am unable to conclude that the dismissal was a disproportionate penalty or
that his personal or economic circumstances are sufficient to warrant the termination of
employment as being harsh”.5 He found the dismissal was not unfair and dismissed Mr
O’Connell’s application.6
[8] In his notice of appeal and written and oral submissions, Mr O’Connell identified a
large range of alleged errors in the Decision. We will not attempt to refer to them all because
many of them are trivial or misconceived on their face (for example, it is said that the
Commissioner misdescribed Mr O’Connell’s middle name), but will simply identify those
which appear to be of the most significance. In relation to the incident at the Vines Hotel on
15 September 2014, Mr O’Connell contended that the Commissioner’s finding that he
“deliberately, without provocation, engaged in 15 to 20 minutes of swearing, demeaning and
torrid abuse of a work colleague”7 was in error, in that he was provoked and the evidence did
not establish that he engaged in such abuse. He further contended that the following findings
were in error:
Mr O’Connell’s conduct on 15 September 2014 was in breach of the Harassment
and Bullying Policy.8
Kleenheat was (in relation to the private vacation rental business issue) entitled to
enforce its policies by disciplinary action including dismissal.9
Mr O’Connell failed to comply with a lawful request by driving the company
vehicle whilst stood down.10
3 Decision at [60] - [63]
4 Decision at [113]
5 Decision at [126]
6 Decision at [127]
7 Decision at [119]
8 Decision at [63]
9 Decision at [78]
10 Decision at [90]
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Mr O’Connell’s driving on 26 September 2014 had the potential to cause risk to
himself and others.11
[9] Mr O’Connell also contended that the Commissioner’s conclusion that dismissal was
not a disproportionate penalty for his conduct and that his personal or economic
circumstances were not sufficient to render his dismissal as being harsh was in error because
he “had been suffering from an existing work related mental harm condition” and because his
family’s economic position had been significantly affected. He also submitted that the
Commissioner failed to take into account a number of material considerations, including the
following:
The incident on 15 September 2014 was an altercation involving two parties, and both
parties were using profanities at the time.
Mr Ritchie acknowledged that a good outcome would have been for him and Mr
O’Connell to apologise to each other.
He had been acting out of character on the evening of 15 September 2014.
He had never received a verbal or written warning for poor behaviour, misconduct or
unsatisfactory performance in 18 ½ years of dedicated service.
He had been suffering from, had received psychological treatment and was on
prescription medication for mental harm directly and solely linked to the treatment of
him by his manager during his employment.
His family’s economic circumstances.
His exemplary work history.
[10] Mr O’Connell’s written submissions stated that permission to appeal should be
granted in the public interest because:
“(a) My case is a rare one and it raises some issues of great importance.
(b) I dispute Commissioner Cloghan’s approach taken in applying 387(h) in
relation to issues of importance and therefore he did not exercise the proper
jurisdiction of the Commission.
(c) I had to seek out psychological treatment for a mental harm condition brought
about solely because of a lack of support, a lack of trust and false allegations
from my Manager … dating back to 2013.
(d) I had been taking prescription medication since 2013 and was still on
prescription medication to assist in the management of my mental harm
condition at the time of being stood down.
11 Decision at [101]
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(e) The Respondent took action of summarily dismissal after they had been made
aware I had an existing mental harm condition and had received medical and
psychological treatment in direct correlation to the treatment from my Manager
… predating their investigation and the alleged misconduct.
(f) I was summarily dismissed whilst covered by a current lawful medical
certificate which the Respondent had in their possession at the time of the
dismissal.
(g) An Employer has a legal obligation in relation to the management of mental
illness in the workplace. OHS legislation requires an employer to ensure they
do not cause ill health or aggravate an existing condition.
(h) The investigation should have been suspended, as the first action, when the
Employer became aware of my mental harm condition, until the medical
complications had been resolved or further investigations were carried out to
clarify what the mental harm issues were and how they came about.
(i) Summary Dismissal and Commissioner Cloghan’s decision was based on
hypothetical outcomes.”
Consideration
[11] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.12 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[12] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC 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.
[13] In the Federal Court Full Court decision 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”.13 The task of assessing whether the public interest
test is met is a discretionary one involving a broad value judgment14. In GlaxoSmithKline
Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the
considerations that may attract the public interest:
12 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
13 (2011) 192 FCR 78 at [43]
14 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
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“... 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.”15
[14] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.16 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.17
[15] We consider that the critical issue in the hearing before the Commissioner at first
instance was the allegation concerning Mr O’Connell’s conduct at the sales conference at the
Vines Hotel on the evening of 15 September 2014. The other allegations were advanced by
Kleenheat only after it had begun the investigation of this incident, and have the flavour of
piling Pelion upon Ossa. It is unlikely that Mr O’Connell would have been dismissed on the
basis of these other allegations alone, or that they would have been found to constitute a valid
reason for the dismissal absent the incident at the Vines Hotel.
[16] The evidence demonstrates that the incident took place in the evening, at a bar in the
hotel, after dinner in circumstances where Kleenheat had arranged and paid for an “open bar”
for its employees who were attending the conference. The Commissioner implicitly treated
the incident as having occurred within the scope of Mr O’Connell’s employment, and we
consider that he was correct to do so in accordance with the principles stated in Keenan
v Leighton Boral Amey NSW Pty Ltd18. Notwithstanding the social nature of the “open bar”
session, it was an activity which was part of a work-related conference organised and paid for
by Kleenheat. Mr O’Connell attended as part of his work obligations. And, as the
Commissioner found, Kleenheat’s Code of Conduct expressly applied to such a conference.
[17] The Commissioner had the benefit of seeing the witnesses, and hearing the entirety of
the evidence unfold, in relation to this incident. He concluded that the evidence of the
witnesses called by Kleenheat, including that of Mr Ritchie, was to be preferred over that of
Mr O’Connell. Nothing advanced by Mr O’Connell persuades us that the Commissioner erred
in doing so. The evidence of Kleenheat’s witnesses amply supported the Commissioner’s
characterisation of Mr O’Connell’s conduct as involving “swearing, demeaning and torrid
abuse of a work colleague”. The Commissioner expressly rejected Mr O’Connell’s suggestion
of provocation in that he accepted the evidence of Mr James Dashwood, one of Kleenheat’s
witnesses, that Mr Ritchie had not provoked what occurred.19 Whether Mr Ritchie considered
that the incident could be settled by a mutual apology was beside the point; the relevant issue
was whether Kleenheat had a valid reason for dismissing Mr O’Connell on the basis of the
15 [2010] FWAFB 5343 at [27], 197 IR 266
16 Wan v AIRC (2001) 116 FCR 481 at [30]
17 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
18 [2015] FWC 3156 at [76]-[103] and [113]
19 Decision at [55]
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conduct which was found to have occurred. We do not discern any error in the
Commissioner’s conclusion that there was a valid reason for dismissal.
[18] As earlier outlined, an important feature of Mr O’Connell’s appeal (expressed in a
variety of different ways) was that he was suffering a mental illness, and was on medication,
at the time of the Vines Hotel incident on 15 September 2014 as well as at the time of his
dismissal, and that this illness was the result of the conduct towards him by his manager. We
accept that if Mr O’Connell had squarely raised as part of his case at first instance that a mental
illness and/or medication had contributed to his behaviour on 15 September 2014 or had
rendered him unable to respond to the allegations against him prior to his dismissal (regardless
of the cause of the illness), this would have constituted a material consideration which the
Commissioner would have had to take into account. We equally accept that the Decision makes
no mention of this matter apart from a reference to Mr O’Connell being absent on a medical
certificate at the time of dismissal.20
[19] However we do not accept that Mr O’Connell advanced his case at first instance on
the bases suggested. He did not admit the conduct which was found to have occurred at the
Vines Hotel and seek to mitigate his responsibility for it on the basis of mental illness and/or
medication. Rather, he denied (and still denies) that the substantial part of the conduct
occurred at all, and to the extent that he admitted anything he claimed that he was provoked
by Mr Ritchie. As earlier stated, the Commissioner rejected this. His written submissions
before the Commissioner made only two references to the issue of mental illness. The first (at
paragraph 12 of those submissions) was that he was suffering from depression at the time of
the Vines Hotel incident and “I was on medication which may have increased the effects of
alcohol on the evening of 15 September 2014”, and the second was (at paragraph 32(g)) that
his manager was “the only reason I have suffered from mental harm in recent time”. There
was never a case advanced that there was any causal link between his mental illness and his
behaviour. At the hearing, Mr O’Connell never positively asserted that his medication had
affected his behaviour on 15 September 2014; the highest it was put was that during the
investigation process he had said in his written response in relation to the incident that his
medication “may have played a part in my out of character behaviour by increasing the level
of intoxication”. There was likewise no suggestion that Mr O’Connell’s illness or medication
prevented him from responding to the allegations prior to dismissal such as to result in a
denial of procedural fairness, and indeed his written responses to the allegations, which were
detailed and highly literate, prove otherwise.
[20] We have taken into account the fact that Mr O’Connell was self-represented at the
hearing before the Commissioner. Nonetheless we consider that if he wished to advance a
case that mental illness and/or medication was a causal factor in him engaging in the
behaviour he was accused of, he was capable of doing this and should have done so in clear
terms. He instead chose to run his case on the basis that either the behaviour did not occur or
that he was provoked into it. The Commissioner rejected that case. The Commissioner cannot
be said to have erred by not considering an alternative case which was never squarely
advanced before him.
[21] We have considered the other matters raised by Mr O’Connell. We do not consider
that any error has been identified in the Decision in respect of those matters. In particular we
consider that it is apparent that the Commissioner took into account Mr O’Connell’s prior
20 Decision at [21]
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employment record and the personal and financial consequences of his dismissal. His
conclusion that this dismissal was not harsh notwithstanding these matters was open to him in
the exercise of his discretion.
[22] We make one observation about the Decision. In his consideration under s.387(a) of
the FW Act as to whether there was a valid reason for the dismissal, the Commissioner made
reference to “[s]ummary dismissal for misconduct in employment” and referred to the
definition of “serious misconduct” in reg.1.07 of the Fair Work Regulations 2013. This was,
with respect, a distraction. As was said by the Full Bench in Sharp v BCS Infrastructure
Support Pty Limited21:
“[32] … It is certainly well established that, for the purposes of s.387(a), it is not
necessary to demonstrate misconduct sufficiently serious to justify summary dismissal
on the part of the employee in order to demonstrate that there was a valid reason for
the employee’s dismissal (although established misconduct of this nature would
undoubtedly be sufficient to constitute a valid reason).22 Nor is the existence of a valid
reason to dismiss assessed by reference to a legal right to dismiss.23 Therefore whether
Mr Sharp’s admitted conduct amounted to misconduct serious enough as to give rise to
the right to summarily dismiss him under the terms of his contract of employment was
not relevant to the required s.387(a) consideration. It may be noted in any event that
Mr Sharp was not summarily dismissed, but dismissed with a payment in lieu of
notice.
[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the
matter is also, with respect, obscure. Section 12 of the Act contains a definition of
“serious misconduct” for the purposes of the Act which simply cross-refers to
reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only
three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a
circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div
11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which
the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in
s.789(1)(b) a dismissal for serious misconduct is one in relation to which the
requirements established by Pt 6-4 Div 3 for notification and consultation do not
apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair
Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the
award of compensation for an unfair dismissal, to reduce the amount that it would
otherwise order by an appropriate amount where it is “satisfied that the misconduct of
a person contributed to the employer’s decision to dismiss the person”. However, it is
clear that conduct may constitute “misconduct” for the purpose of s.392(3) without
necessarily being “serious misconduct”. The expression is used in the Small Business
Fair Dismissal Code, but that had no application in this case (and it is at least highly
doubtful in any event whether the reg.1.07 definition applies to the Small Business
Fair Dismissal Code).24 Reg.1.07 therefore had no work to do in the application of the
provisions of Pt 3-2 to the circumstances of this case.
21 [2015] FWCFB 1033
22 Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10]
23 He v Lewin (2004) 137 FCR 266 at [15] per Gray and Mansfield JJ
24 Since Sharp, it has been held in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWC 5264 that reg.1.07
does apply to the expression “serious misconduct” where it appears in the Small Business Fair Dismissal Code.
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[34] It may be accepted that an assessment of the degree of seriousness of
misconduct which has been found to constitute a valid reason for dismissal for the
purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In
that context, a conclusion that the misconduct was of such a nature as to have justified
summary dismissal may also be relevant. Even so, it is unclear that this requires a
consideration of whether an employee’s conduct met a postulated standard of “serious
misconduct”. In Rankin v Marine Power International Pty Ltd25 Gillard J stated that
“There is no rule of law that defines the degree of misconduct which would justify
dismissal without notice”26 and identified the touchstone as being whether the conduct
was of such a grave nature as to be repugnant to the employment relationship.27
“Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to
adopt it as a fixed standard for the consideration of misconduct for the purpose of
s.387(h) may be confusing or misleading because the expression, and other
expressions of a similar nature, have been considered and applied in a variety of
contexts in ways which are influenced by those contexts. In McDonald v Parnell
Laboratories (Aust) Pty Ltd28 Buchanan J said:
‘[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful
misconduct’ are often the subject of judicial and administrative attention as
applied to the facts of particular cases but there is relatively little judicial
discussion about their content and meaning. Naturally enough, when the term
‘serious misconduct’ is under consideration an evaluation of what conduct
represents ‘serious’ misconduct is influenced by the (usually statutory) setting
in which the phrase must be given meaning and applied. Frequently, for
example, the question at issue is whether an employee is disentitled by reason
of his or her conduct to a statutory entitlement (eg. in New South Wales, where
Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s
4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).’”
[23] It is of course the case that the commission of any of the types of conduct referred to
in reg.1.07 (broadly speaking, wilful or deliberate conduct inconsistent with the continuation
of the employment contract, serious and imminent risk to health and safety or the viability of
the business, theft, fraud, or assault, intoxication at work and refusal to carry out a lawful and
reasonable instruction) may well ground a finding under s.387(a) that there is a valid reason
for dismissal, and would also be given significant weight in considering whether a dismissal
for such conduct is harsh, unjust or unreasonable under s.387. It must also be acknowledged
that the application of the exemption in s.123(1)(b) from the requirement to provide the NES
entitlement to notice would not be irrelevant under s.387. But the point is that “serious
misconduct” as defined in reg.1.07 (or otherwise) is not the criterion for whether a valid
reason exists under s.387(a) or for whether a dismissal is unfair or not. It may well be the
case, for example, that conduct that does not fall within reg 1.07 may nonetheless be found to
constitute a valid reason for dismissal. Alternatively, the fact that a dismissal is based on
conduct that does fall within reg.1.07 does not preclude a finding that the dismissal was harsh,
unjust or unreasonable.
25 (2001) 107 IR 117
26 Ibid at [240]
27 Ibid at [250]-[257]
28 (2007) 168 IR 375
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[24] This did not amount to appealable error because it is clear that the Commissioner
ultimately decided the matter on the basis of a finding that there was a valid reason for the
dismissal. But it is of some collateral significance here because Mr O’Connell was denied his
long service leave accrued over approximately 18 years of continuous service under the Long
Service Leave Act 1958 (WA) on the basis that he was dismissed for serious misconduct.
Although the Decision refers to serious misconduct to the extent earlier described, it cannot be
taken as making a conclusive finding to that effect supportive of the denial of long service
leave because that was not the statutory criterion being applied (and in any event the
Commission, not being a court, could not make a judicially binding determination about this).
[25] We would also make the observation that Kleenheat’s denial of Mr O’Connell’s long
service leave appears, on the basis of decided authority, to be contrary to s.8(2) of the Long
Service Leave Act. Subsections 8(2) and 8(3) provide:
(2) An employee who has completed at least 10 years of such continuous
employment, as is referred to in subsection (1), is entitled to an amount of long service
leave as follows —
(a) in respect of 10 years so completed, 8 2/3 weeks;
(b) in respect of each 5 years’ continuous employment so completed after
such 10 years, 4 1/3 weeks; and
(c) on the termination of the employee’s employment —
(i) by his death;
(ii) in any circumstances otherwise than by his employer for serious
misconduct,
in respect of the number of years of such continuous employment completed
since the employee last became entitled under this Act to an amount of long
service leave, a proportionate amount on the basis of 8 2/3 weeks for 10 years
of such continuous employment.
(3) Where an employee has completed at least 7 years of such continuous
employment since the commencement thereof, but less than 10 years, and the
employment is terminated —
(a) by his death; or
(b) for any reason other than serious misconduct,
the amount of leave to which the employee is entitled shall be a proportionate amount
on the basis of 8 2/3 weeks for 10 years of such continuous employment.
[26] Subsection 9(2) provides:
(2) In a case to which section 8(2)(c) or section 8(3) applies the employee shall be
deemed to have been entitled to and to have commenced leave immediately prior to
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such termination. In such cases and in any case in which the employment of the
employee who has become entitled to leave hereunder is terminated before such leave
is taken or fully taken the employer shall, upon termination of his employment
otherwise than by death pay to the employee and upon termination of employment by
death pay to the personal representative of the employee upon request by the personal
representative, a sum equivalent to the amount which would have been payable in
respect of the period of leave to which he is entitled or deemed to have been entitled
and which would have been taken but for such termination. Such payment shall be
deemed to have satisfied the obligation of the employer in respect of leave hereunder.
[27] In Davies v Youngs WA Pty Ltd29 the Western Australian Industrial Relations
Commission dealt with the question of whether an employee with continuous service in
excess of 15 years’ service who had been dismissed because of serious misconduct was
thereby disentitled to accrued long service leave. Although there was a jurisdictional difficulty
which required the employee’s claim to be dismissed, the Commission nonetheless expressed
its view as to the merits of the claim as follows (emphasis added):
“[23] It is contended on behalf of the Applicant that s.8(2)(a) confers an absolute
entitlement on the Applicant to long service leave where 15 years service has been
completed. Further that the exclusion in s.8(2)(c) has no application because it is
clearly limited to accrual of pro rata leave where an employee has commenced the
second qualifying period. Further that s.8(3) has no application because the Applicant
has completed 15 years service. Accordingly it is clear that the provisions of s.8(2) and
s.8(3) which disentitle an employee to payment for long service for serious
misconduct only apply to pro rata service that occurs after 15 years service have been
completed or in the case of an employee who has completed at least 10 years of
service but less than 15 years. The Applicant also argues that s.9(2) of the LSL Act
makes it plain that once an employee who has become entitled to long service leave is
later terminated before such long service leave is taken the employer is required by
mandatory terms by the use of the words “shall upon termination pay to the employee”
a sum equivalent to the amount which would have been payable in respect of the
period of leave to which he is entitled.
[24] The Respondent argues that the LSL Act is silent as to the entitlement to
payment in lieu of long service leave for a completed 15 year period when the
termination occurs after long service leave vests and the employee is terminated on
grounds of serious misconduct. Alternatively, it is argued on behalf of the Respondent
that even if a vested entitlement may be payable it would not be consistent with the
intention of the LSL Act to reward long and faithful service or with the Commission’s
obligations under s.26(1) of the Act for the Commission to order payment of an
entitlement.
[25] Having considered the arguments it is my view that Parliament has addressed
termination on grounds of serious misconduct and made it clear that if an employee
completes 15 years service then that employee is entitled to payment of a sum
equivalent to the amount he would have been paid in respect of leave to which he is
entitled pursuant to s.8(2)(a) and s.9(2) of the LSL Act but not to a payment for any
pro rata entitlement he is entitled to but for the misconduct. In my view the words in
29 [2002] WAIRComm 5586
[2015] FWCFB 8205
12
s.9(2) that follow the reference to the circumstances set out in s.8(2)(c) and s.8(3), that
is the words "and in any case in which the employment of the employee who has
become entitled to leave hereunder is terminated before such leave is taken ..." make it
plain that payment is to be made on termination where s.8(2)(a) applies.”
[28] We would read this decision to mean that Mr O’Connell would be entitled to the leave
which he has fully accrued under s.8(2)(a) and (b) for the first 15 years of his service but not
for the part-accrued component after that. However if the issue remains in dispute, Mr
O’Connell will need to enforce any claim he may have for long service leave before a court
with jurisdiction to deal with the matter.
Conclusion
[29] For the reasons stated above, we do not consider that Mr O’Connell has demonstrated
any arguable case of appealable error in the Decision. Nor do we consider that he has
otherwise identified any issue in his appeal which is of a nature that would attract the public
interest. We are therefore not satisfied that the grant of permission to appeal would be in the
public interest.
[30] In accordance with s.400(1) permission to appeal must therefore be refused.
VICE PRESIDENT
Appearances:
A. O’Connell on his own behalf.
T. Smetana solicitor for Wesfarmers Kleenheat Gas Pty Ltd t/a Kleenheat Gas.
Hearing details:
2015.
Sydney:
27 November.
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