[2016] FWCFB 5499
The attached document replaces the document previously issued with the above code on 30
August 2016.
A typographical error has been fixed at paragraph 15.
Helen Hamberger
Associate to Vice President Hatcher
11 October 2016
1
Fair Work Act 2009
s.604 - Appeal of decisions
Mark Sayers
v
CUB Pty Ltd
(C2016/4150)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER JOHNS
SYDNEY, 30 AUGUST 2016
Permission to appeal against decision [[2016] FWC 3428] of Deputy President Clancy at
Melbourne on 26 May 2016 in matter number U2015/15099.
Introduction
[1] Mr Mark Sayers has applied for permission to appeal against a decision of Deputy
President Clancy issued on 26 May 20161 (Decision). The Decision concerned an application
by Mr Sayers for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act)
in respect of the termination of his employment with CUB Pty Ltd (CUB). The Deputy
President, having found that Mr Sayers’ termination of employment was not unfair, dismissed
Mr Sayers’ application. Mr Sayers contends that the decision was attended by appealable
error and that permission to appeal should be granted in the public interest.
[2] CUB dismissed Mr Sayers after an incident on 13 October 2015 in which Mr Sayers
engaged in verbal abuse of an offensive, racial and threatening nature towards two fellow
employees. Prior to this incident Mr Sayers had been employed by CUB since 2000 and had
an unblemished employment record. There was no challenge in the appeal to the findings of
fact made by the Deputy President, and indeed at first instance Mr Sayers in his closing
submissions admitted most (but not all) of the conduct alleged against him.
[3] Under s.387 of the FW Act, the Deputy President was required in his consideration of
whether Mr Sayers’ dismissal was harsh, unjust or unreasonable to take into account a
number of identified matters, which included (in s.387(a)) “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)”. Mr Sayers advanced a case before the Deputy President
that there was no valid reason for his dismissal because, among other things, the dismissal
was disproportionate to his conduct, the conduct had to be assessed in its proper context
including CUB’s failure to manage the ongoing inappropriate conduct of one of the
1 [2016] FWC 3428
[2016] FWCFB 5499
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 5499
2
employees whom Mr Sayers had abused, Mr Mansilla, and the dismissal was harsh having
regard to Mr Sayers’ record of employment.
[4] The Deputy President did not accept Mr Sayers’ submissions in this respect and found
that there was for the purpose of s.387(a) a valid reason for the dismissal based on Mr Sayers’
abusive conduct towards the other two employees. In doing so, the Deputy President gave
express consideration to Mr Sayers’ submissions concerning the context in which his conduct
occurred and whether the dismissal was disproportionate to the conduct engaged in. In
relation to the first matter, the Deputy President found as follows (underlining added):
“[119] … Having heard and considered the evidence, I am not persuaded there was an
ongoing failure by CUB to manage inappropriate behaviour in the workplace by Mr
Mansilla that would justify Mr Sayers’ behaviour on 13 October 2015.”
[5] In relation to one aspect of the factual context raised by Mr Sayers concerning a
missing delivery docket, the Deputy President had also earlier said that he was not persuaded
that this “was an issue of such importance to justify Mr Sayers’ subsequent reaction and
behaviour” (underlining added).2
[6] In relation to the submission concerning disproportionality, the Deputy President
found (underlining added):
“[125] As outlined above, I am not persuaded that the actions of Mr Sayers can be
justified on grounds that he was provoked by Mr Mansilla nor can it be justified on
grounds that CUB had failed to manage inappropriate behaviour of Mr Mansilla.
[126] CUB was entitled to set standards and having outlined them to its employees,
insist upon adherence. As referred to in paragraph [30] above, it had terminated the
employment of other employees for verbal abuse and/or the threat of violence. I find
that the offensive language and verbal abuse Mr Sayers meted out to Mr Barmby and
Mr Mansilla was highly inappropriate, his calling Mr Mansilla a “dirty gringo cunt” an
offensive, degrading and racial slur and his saying to Mr Mansilla, “I’ll fix your red
wagon” was, in the context of the exchange and all the language and body language
used, a threat of violence. This behaviour of Mr Sayers on 13 October 2015
constituted a breach of CUB Policy of such seriousness as to constitute a valid reason
for the termination of his employment.”
[7] The Deputy President went on to consider each of the other matters specified in s.387.
In relation to s.387(h), the Deputy President took into account Mr Sayers’ age, length of
service, unblemished employment record and remorse for his conduct, and the financial and
personal consequences of the dismissal, and weighed these factors against the misconduct he
found had occurred, the seriousness of the breach of CUB policy which was involved and the
effect of the misconduct on the working environment.3 His ultimate conclusion, as earlier
stated, was that he was not satisfied that the dismissal was harsh, unjust or unreasonable.4
2 Decision at [110]
3 Decision at [144]-[145]
4 Decision at [149]
[2016] FWCFB 5499
3
[8] Mr Sayers submitted before us that the grant of permission to appeal was in the public
interest because the Decision manifested appealable error in two respects:
(1) The Deputy President applied the wrong test, in that instead of determining
whether the dismissal was harsh, unjust or unreasonable notwithstanding that
there was a valid reason for dismissal, he approached the matter on the basis of
whether the mitigating circumstances raised by Mr Sayers “justified” his
conduct. Mr Sayers never submitted his conduct was justified, but merely
identified matters which operated to explain and contextualise his behaviour.
The Deputy President’s erroneous test of “justification” meant that Mr Sayers’
submissions concerning the context in which his conduct occurred and the
alleged failure of CUB to manage Mr Mansilla’s ongoing behaviour were not
properly considered.
(2) The Deputy President, in applying the “justification” test, did not follow the
principles established in the Australian Industrial Relations Commission Full
Bench decision in Tenix Defence Systems Pty Ltd v Fearnley.5
[9] Mr Sayers submitted that there was “substantial public interest in ensuring that the
Tribunal consistently and correctly applies the law”, and that permission to appeal should be
granted on that basis.
Consideration
[10] This appeal is one to which s.400 of the FW Act applies6. 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.
[11] 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”.7 The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.8 In GlaxoSmithKline Australia
Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that
may attract the public interest:
5 22 May 2000, Print S6238
6 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]; (2011) 282 ALR 561
7 [2011] FCAFC 54 at [43]; (2011) 192 FCR 78
8 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]
[2016] FWCFB 5499
4
“... 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.”9
[12] 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.10 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.11
[13] In this case we do not consider that the appeal grounds which Mr Sayers wishes to
agitate are sufficiently arguable to sustain the grant of permission to appeal in the public
interest. It is clear, we consider, that the Deputy President determined the application before
him in accordance with the statutory test of whether the dismissal was harsh, unjust or
unreasonable, and in doing so had regard to all the matters he was required to take into
account under s.387.
[14] The conduct on the part of Mr Sayers which the Deputy President found had occurred
and which formed the reason for the termination of his employment by CUB plainly
constituted, prima facie, a valid reason for his dismissal for the purposes of s.387(a).
Offensive, racial and threatening abuse of a fellow employee in the workplace would
ordinarily constitute a sound, defensible or well-founded reason12 for dismissal. It would
require contextual matters which operated to diminish significantly the perpetrator’s
culpability, such as extreme provocation from the other employee, to displace the conclusion
that there was a valid reason for dismissal. We consider that, in his consideration under
s.387(a), the Deputy President’s assessment of whether the contextual matters raised by Mr
Sayers “justified” his conduct was no more than a manner of expression of this conventional
position. To the extent that the matters raised by Mr Sayers only “explained” or
“contextualised” his conduct in a way that did not significantly reduce his culpability, we do
not consider that Deputy President erroneously excluded them from consideration by his use
of the criterion of “justification”.
[15] As earlier stated, the Deputy President in his consideration under s.387(h) weighed Mr
Sayers’ conduct against the length and quality of his service with CUB and took into account
the personal and financial consequences for Mr Sayers of the dismissal. In doing so, the
Deputy President in substance applied the test for harshness stated by McHugh and Gummow
JJ in Byrne v Australian Airlines Ltd13, namely that a dismissal “…may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer acted”.
9 [2010] FWAFB 5343 at [27], 197 IR 266
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 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 388, 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]
12 See Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 per Northrop J
13 [1995] HCA 24; (1995) 185 CLR 410 at 465
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281995%29%20185%20CLR%20410?stem=0&synonyms=0&query=title(sayers%20)&nocontext=1
[2016] FWCFB 5499
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Therefore there is no foundation for Mr Sayers’ contention that the Deputy President failed to
have regard to his submission that dismissal was a disproportionate response to his conduct.
Although Mr Sayers raised the issue of disproportionality of punishment in connection with
the valid reason consideration under s.387(a), we consider that the Deputy President acted in
accordance with the balance of authority under the FW Act in considering this issue under
s.387(h).14 Certainly it was open for him to approach the matter in this way.
[16] For these reasons, we do not consider that the proposition that the Deputy President
did not consider the submissions put by Mr Sayers is reasonably arguable. We also reject as
not reasonably arguably the proposition that the Deputy President did not follow the
principles said to have been established in the AIRC Full Bench decision in Tenix Defence
Systems Pty Ltd v Fearnley.15 That matter, which was decided under the Workplace Relations
Act 1996, concerned the dismissal of an employee for fighting with another employee. The
Full Bench affirmed the decision made at first instance that the dismissal was unfair,
substantially because the employee had acted in self-defence, and that the employee should be
reinstated. The Tenix decision represents no more than an application of the conventional
position which we described earlier that a reason for dismissal which is prima facie a valid
one (in that case, fighting in the workplace) may nonetheless be found not to be valid if there
are contextual matters which significantly diminish the employee’s culpability (because the
employee acted in self-defence). We do not consider, as earlier discussed, that the Deputy
President considered Mr Sayers’ application on any different basis.
[17] We are not satisfied that the grant of permission to appeal would be in the public
interest. Therefore, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
S. Kelly counsel and J. Winters Construction, Forestry, Mining and Energy Union for M.
Sayers.
N. Harrington counsel and I. Goodwin for CUB Pty Ltd.
Hearing details:
2016.
Sydney:
9 August.
14 See B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191, (2013) 238 IR 1 at [43]-[58];
DP World Sydney Limited [2013] FWCFB 9230 at [103]; Bista v Glad Group Pty Ltd [2016] FWC 3009 at [42]
15 22 May 2000, Print S6238
OF THE FAIR WORK MISSION THE
[2016] FWCFB 5499
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