1
Fair Work Act 2009
s.604—Appeal of decision
Commonwealth of Australia (Australian Taxation Office) T/A Australian
Taxation Office
v
Ron Shamir
(C2016/3149)
SENIOR DEPUTY PRESIDENT HAMBERGER
DPEUTY PRESIDENT HAMILTON
COMMISSIONER SAUNDERS
SYDNEY, 6 MAY 2016
Appeal against decision [2016] FWC 1844 of Commissioner Ryan at Melbourne on 23 March
2016 in matter number U2015/11065.
[1] On 29 March 2016 the Commonwealth of Australia (Australian Taxation Office) (the
ATO) lodged a notice of appeal in which it sought permission to appeal and appealed a
decision issued on 23 March 20161 by Commissioner Ryan (decision) and order issued on the
same day2. The decision arose out of an unfair dismissal remedy application under s.394 of
the Fair Work Act 2009 (FW Act) which Mr Ron Shamir made in respect of his dismissal
from employment with the respondent. The Commissioner found that there was no valid
reason for termination of employment, and made other findings under s.387 of the Act. He
found that the dismissal of Mr Shamir was harsh, and made an order of reinstatement.
Appeal provisions
[2] This appeal is one to which s.400 of the FW Act applies3. 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.
1 [2016] FWC 1844
2 PR578347
3 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
[2016] FWCFB 2661
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 2661
2
[3] 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”.4 The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment5. In GlaxoSmithKline Australia
Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that
may attract the public interest:
“... 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.”6
[4] 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.7 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.8
Submissions
[5] The appellant submitted that the Commissioner erred in finding that the non-
performance of duties by Mr Shamir was not a valid reason for termination of employment,
and challenged a number of other findings made by the Commissioner in support of his
conclusion that there was no valid reason for termination of employment. It put a number of
other submissions. The respondent put detailed submissions in response. We have had regard
to the submissions put.
Decision
[6] In Parmalat Food Products Pty Ltd v. Tran9 a Full Bench of the Commission said:
‘[10] In this case the Commission found that the applicant breached its safety policy.
The Commission then found that this did not constitute a valid reason for dismissal for
reasons including that the applicant had not received a written warning, there were
rational reasons for breach of policy, the applicant was honest and contrite, the
applicant’s good service, the need to avoid differential treatment of employees, and
‘there were lesser punishments open to the Respondent which would have been
appropriate’. The Deputy President said:
4 (2011) 192 FCR 78 at [43]
5 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]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 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]
9 [2016] FWCFB 1199 at 11
[2016] FWCFB 2661
3
“[54] The Respondent has established that the Applicant breached its safety
policy and practices on 5 March. However, I am not satisfied that this
constitutes a valid reason for his dismissal. I have come to this view because:
There is, to say the least, uncertainty about the status of the
Respondent’s response to the 19 February incident. At the highest
level, the Applicant had received a verbal counselling and had been
stood down from forklift duties for a week while the investigation took
place. He had not received a written warning. When the 5 March
incident occurred he was driving forklifts.
Even though the Applicant breached policy, there were rational
explanations for his actions.
The Applicant was honest and contrite in co-operating in the
investigation.
[55] The Applicant’s service with the Respondent, taking account casual
employment, was over ten years. He had a good work and performance record.
Dismissal, in the circumstances, was not a proportionate response to the
breach.
[56] I accept that a comparison of differential approaches to employees needs
to be undertaken with caution (see: Wayne Darvell v Australian Postal
Corporation [2010] FWAFB 4082, Sexton v Pacific National (ACT) Pty Ltd
(PR931440), Daly v Bendigo Health Care Group (PR973305). However, both
the Applicant and Mr Tiqui had long and good service. Given that Mr Tiqui
was the Leading Hand and therefore should be expected to accept greater
responsibility, it is hard to see that the Applicant should receive a harsher
punishment. The evidence is the Applicant was co-operative at all times.
[57] I find therefore that although there was a breach of the Respondent’s
health and safety policies and practices, it did not represent a valid reason for
dismissal. In all the circumstances, there were lesser punishments open to the
Respondent which would have been appropriate.
…
[71] Having found that there was no valid reason for the dismissal, the factors I
have taken into account pursuant to s.387(h) support the finding that the
dismissal was harsh, unjust or unreasonable. The Applicant was not accorded
“a fair go” in the sanctions imposed by the Respondent in response to his
actions. Accordingly, I find that the dismissal was unfair within the terms of
s.385.”
[11] The Commission conflated the requirement to make a finding as to whether or not
there was a valid reason with the requirement under s.387 to make a finding as to
whether or not the termination was harsh, unjust or unreasonable. The Commission
made a finding that there was no valid reason for termination of employment for
various extenuating reasons which were relevant to whether or not the dismissal was
overall harsh, unjust or unreasonable, but which were not relevant to whether or not
http://www.fwc.gov.au/alldocuments/PR973305.htm
http://www.fwc.gov.au/alldocuments/PR931440.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb4082.htm
[2016] FWCFB 2661
4
there was a valid reason for termination of employment. This is an error of law which
raises issues of public interest.
[12] In addition, the evidence before the Commission, and the Commission’s own
findings about the evidence, in our view compelled the Commission to find that there
was a valid reason for dismissal, namely breach of the safety policies of the company.
In applying s.387 of the Act the Commission must give consideration to the need to
enforce safety standards to ensure safe work practices are applied generally at the
workplace. This is both for the protection of employees and others, and to comply with
legal obligations imposed on employers, which require them to take various actions,
including establishing and enforcing safety policies.
[13] This is an error of the type described in House v King because it applied an
erroneous principle, misapplied the provisions of the Act, and allowed irrelevant
considerations to influence the decision on the existence of a valid reason. Further, it
distorted the assessment of whether the termination was harsh, unjust or
unreasonable.’
[7] In this case Commissioner Ryan found that there was no valid reason for termination
of employment within s.387(a):
‘In the present matter Mr Shamir freely admits that he did not undertake some duties
which he was specifically told to perform. Thus the non-performance of duties by Mr
Shamir is not in dispute. However, the fact that Mr Shamir did not perform some
duties which he was specifically told to perform does not of itself lead to the
conclusion that there was a valid reason for the dismissal of Mr Shamir.
Mr Shamir’s refusal to perform certain duties which he was told to perform is merely
one fact in a matrix of facts and whether Mr Shamir’s refusal to perform certain duties
which he was told to perform gives rise to a valid reason for dismissal must be
considered in the context of the factual matrix which existed at the time.
In the Selvachandran sense,10 i.e. using the dictionary definition of valid11, the reason
for dismissal needs to be well founded, sound, defensible, or just.
In the present matter the decision to dismiss Mr Shamir is indefensible in the
circumstances where there was a live and ongoing dispute both as to the ATO’s
entitlement to require Mr Shamir to perform the duties he was directed to perform and
as to Mr Shamir’s entitlement to refuse to perform those duties. It is clear that the
ATO met the requirements of the PS Act 1999 (the PS Act) in dismissing Mr Shamir
for non-performance of duties within the meaning of s.29(3(c) of the PS Act.
However, meeting the requirements of s.29(3)(c) of the PS Act does not mean that the
dismissal is defensible for the purpose of determining whether the dismissal is harsh,
unjust or unreasonable. The focus only on the provisions of the PS Act is too narrow a
10 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
11 Dictionary definitions of “valid” - “1. sound, just, or well-founded: a valid reason; a valid objection. 2. having force,
weight, or cogency; authoritative. 3. legally sound, effective, or binding; having legal force; sustainable in law.”,
Macquarie Dictionary Online; and “1. (of a reason, objection, etc.) sound or defensible; well grounded.”, Concise Oxford
Dictionary, Ed. 8.
[2016] FWCFB 2661
5
focus. In the present matter the ATO’s decision to dismiss Mr Shamir pursuant to
provisions of the PS Act is clearly lawful but is not a valid reason. Section 29(1) of the
PS Act creates a right for an Agency Head to terminate the employment of an
APS employee but it does not mandate that the Agency Head must terminate the
employment of the APS employee. In the circumstances of the present matter where
the conduct of Mr Shamir provided a ground for termination under s.29 of the PS Act,
there was nothing in the PS Act that required the ATO to terminate Mr Shamir’s
employment. There is nothing in the material before the Commission which suggests
that alternatives to termination were explored either within the ATO or with
Mr Shamir.
In the present matter the decision to dismiss Mr Shamir is unsound. There are too
many holes in the ATO’s case. By not resolving the dispute raised by the CPSU about
the need for Mr Shamir to perform certain duties, the ATO was proceeding down the
path of disciplinary action leading to dismissal with only half of the factual matrix in
play. This was very much an exercise of the right hand of the ATO either not knowing
or ignoring what the left hand of the ATO was doing. The decision to dismiss
Mr Shamir was intuitively unsound because of this. The soundness of the decision to
dismiss Mr Shamir might possibly have been established had Mr Miller given
evidence in this matter. However in the absence of evidence from Mr Miller the
Commission could not be satisfied that the reason for the dismissal of Mr Shamir was
sound.
In the present matter the decision to dismiss Mr Shamir is not well founded. The mere
non-performance of certain duties does not of itself found a reason for dismissal. The
non-performance of duties occurred in a context which comprises a factual matrix.
The dismissal for non-performance of duties could only be well founded where the
nature of the non-performance of duties, both as to the nature of the duties to be
performed and the nature of the conduct which amounted to non-performance,
outweighed factors which explained or excused the non-performance of duties. In the
circumstances of the present matter where the reasons for the dismissal are those set
out in the letter from Mr Miller, Assistant Commissioner, People on 19 June 2015 and
where Mr Miller was not able to be examined as to those reasons it is not possible for
the Commission to be satisfied that the reason for dismissal was well founded.
In the present matter the decision to dismiss Mr Shamir is unjust. I note at this point
that in this paragraph I am considering the justness of the reason for dismissal and not
the justness of the dismissal which is a much broader consideration of all of the
relevant criteria in s.387. The decision to dismiss was made before the dispute
resolution process in relation to the dispute about what duties Mr Shamir could
be required to perform was resolved. The decision to dismiss denied Mr Shamir the
opportunity to have the dispute over performance of duties resolved in accordance
with the dispute procedures of the ATO EA. The decision to dismiss Mr Shamir could
only have occurred on the basis that the ATO considered at all times that it had a right
to terminate Mr Shamir under s.29 of the PS Act and that that right trumped any
entitlement Mr Shamir had to raise a dispute under the disputes procedure of the ATO
EA and any rights that Mr Shamir had under the ATO EA and or the Fair Work Act.
The Commission, on all of the material before it, cannot be satisfied that there was a
valid reason for the dismissal of Mr Shamir.’
[2016] FWCFB 2661
6
[8] The Commissioner made a number of other comments in relation to Mr Shamir’s non-
performance of duties, and the dispute between Mr Shamir and the ATO, later in his decision,
including in paragraphs 43-56, 77-80, and elsewhere.
Conclusion
[9] It is arguable from Parmalat Pty Ltd v. Tran and other authorities that the
Commissioner conflated the test of whether or not there is a valid reason within s.387(a) with
issues which might be relevant under s.387(h) and with the overall test of whether or not the
dismissal was harsh, unjust or unreasonable. These issues included the ongoing dispute
between the ATO and Mr Shamir. Further, it is arguable that in expressing his conclusion as
to this dispute the Commissioner failed to apply the words of the statute and make the
required findings about matters relevant to s.387, including the extent of Mr Shamir’s non-
performance of duties and other relevant matters. These are arguable issues of appealable
error. As the decision under appeal raises issues of general application, including whether or
not it is appropriate for the Commission to find that a valid reason does not exist for the
reasons set out in the decision, we consider that it is in the public interest that we grant
permission to appeal.
[10] We grant permission to appeal. We will issue directions for further submissions on
whether or not the appeal should be allowed and if so what orders should be made by the
Bench pursuant to s.607 of the Act.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J Bourke QC with Mr Matthew Follett for the appellant
Mr D Langmead of Counsel for the respondent
Hearing details:
2016
Sydney, Canberra (video) and Melbourne (video)
14 April
Printed by authority of the Commonwealth Government Printer
Price code C, PR579649
WORK COMMISSION AIR WORK THE SEAL OF THE
